Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)). (b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to: (i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter); (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and (iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing. (c) Purchaser shall promptly notify the Sellers in writing (A) of any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision. (d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary necessary, advisable or proper to consummate obtain funds sufficient to pay the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, payments required to fund the Funding Requirements on or prior to be made by Purchaser at the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause pursuant to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein this Agreement (including the payment of any fees required as a condition Estimated Purchase Price), including to arrange and obtain the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Equity Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable subject only to the Debt Financing Sources and (B) conditions expressly stated in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Equity Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the ClosingLetter.
(cb) Purchaser shall promptly notify the Sellers in writing (A) of any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without Without the prior written consent of the SellersSeller (which shall not be unreasonably withheld, conditioned or delayed), Purchaser shall not permit any material amendment amendment, replacement, supplement or other modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Equity Commitment Letter (including the Fee Letter) if such amendment, replacement, supplement or other Debt Document, in each case, that modification (individually or in the aggregate with any other amendments, modifications or waiversi) would reasonably be expected to (x) reduce the aggregate amount of the Debt net proceeds of the Equity Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby funded at the Closing below the amount necessary to fund any payments required to be made by Purchaser at the Closing pursuant to this Agreement (including the Estimated Purchase Price), (ii) would add any new, or would amend, supplement or otherwise modify any of the conditions to the funding of the Equity Financing as compared to the Equity Commitment Letter as in effect on the date of this Agreement, or (yiii) impose any new would amend or additional conditionmodify Seller’s rights as a third-party beneficiary of the rights granted to Purchaser under the Equity Commitment Letter for the purpose of seeking specific performance of Purchaser’s right to cause the Equity Financing to be funded thereunder, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any the other Persons party to the Debt Equity Commitment Letter Letter.
(c) Prior to the Closing, in the event that Purchaser determines in its sole discretion to obtain bank debt or other Debt Document or similar financing at the ability Closing for the purpose of Purchaser to consummate financing the transactions contemplated hereby (“Debt Financing”), Seller shall use reasonable best efforts, and shall cause its applicable Subsidiaries to use reasonable best efforts, and each of them shall use their reasonable best efforts to cause their respective Subsidiaries engaged in the GES Business and each of their respective Representatives, to provide to Purchaser reasonable and customary cooperation that is reasonably requested by Purchaser in connection with arranging and obtaining the Debt Financing, including the following:
(i) assisting in the preparation of definitive documentation with respect to such Debt Financing, including guarantee and collateral documents and customary certificates and other customary documents (including schedules to any of the foregoing) as Purchaser may reasonably request, and otherwise facilitating the obtaining of guarantees and pledging of collateral in connection with the Debt Financing as Purchaser may reasonably request in writing;
(ii) furnishing Purchaser at least three (3) Business Days prior to the Closing; providedClosing Date with all documentation and other information required by any Governmental Entity with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, in each case, that notwithstanding anything is reasonably requested by Purchaser at least ten (10) Business Days prior to the contrary hereinClosing Date;
(iii) furnishing to Purchaser such financial and other pertinent information regarding the GES Business as may be reasonably requested by Purchaser to the extent required by the definitive documentation with respect to such Debt Financing and otherwise reasonably available and customary for such Debt Financing;
(iv) participating in a reasonable number of meetings and presentations at mutually agreed upon locations (which shall be limited to teleconference or virtual meeting platforms) and during normal business hours and at mutually agreed upon times with prospective lenders and investors, no consent from due diligence sessions and sessions with the Sellers ratings agencies, in each case in connection with the Debt Financing; and
(v) to the extent required by the definitive documentation with respect to such Debt Financing, reasonably assisting Purchaser in the preparation of (A) customary bank information memoranda (including the delivery of customary authorization and representation letters) and related lender presentations, which in each case shall exculpate Seller and its Subsidiaries and Affiliates with respect to any liability related to the unauthorized use or misuse of the contents of such materials by the recipients thereof, (B) customary materials for rating agency presentations and (C) pro forma financial information and pro forma financial statements (it being understood that Purchaser, and not Seller or any other party hereto shall be required of its Subsidiaries, Affiliates or Representatives, is 82 responsible for (1) any amendment, restatement, amendment the preparation of such pro forma financial information and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provisionpro forma financial statements).
(d) Notwithstanding anything in Section 5.15(c) or this Agreement to the contrary, the cooperation requested by Purchaser pursuant to Section 5.15(c) shall not (i) unreasonably interfere with the ongoing operations of Seller, any of its Subsidiaries or any of their respective Affiliates or Representatives, or (ii) require Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives to (A) pay any commitment or other similar fee or incur any other cost or expense unless subject to reimbursement by Purchaser in accordance with Section 5.15(e), (B) (1) execute, deliver or enter into, or perform any agreement, document or instrument (other than the customary authorization and representation letters contemplated above), including any definitive financing agreement, with respect to the Debt Financing, (2) have or incur any liability or obligation in connection with the Debt Financing, including under any agreement, document or instrument related to the Debt Financing or (3) take or commit to taking any action (including entering into any agreement and any corporate or comparable action), in each case, other than upon the Closing but solely with respect to NewCo Entities that will become obligors in respect of the Debt Financing, (C) provide any legal opinion or other opinion of counsel or accountants’ comfort letters or any reliance letter, (D) make any representation to Purchaser, any of its Affiliates, any Debt Financing Related Party, or any other Person as a result of any such cooperation, as to the solvency of Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives, or to deliver or require to be delivered any solvency or similar certificate; provided that, if requested by Purchaser, a continuing employee of the GES Business that is an officer of an obligor in respect of the Debt Financing at the Closing (if any) shall deliver such a certificate in customary form with respect to the GES Business upon the Closing, (E) take any action that would reasonably be expected to subject any director, manager, officer, employee or other Representative of Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives to any actual or potential personal liability, (F) take any action that Seller reasonably determines in good faith could (1) jeopardize any attorney client privilege of (provided that Seller shall, and shall cause its controlled Affiliates to, use commercially reasonable efforts to provide the applicable information in a manner that will not jeopardize such privilege), (2) violate any certificate of incorporation or bylaws (or comparable documents) of, (3) violate any Law applicable to, (4) constitute a default or give rise to any right of termination, cancellation or acceleration of any right or obligation under any provision of any Contract or other instrument binding on, or (5) conflict with any confidentiality requirements applicable to (provided that Seller shall, and shall cause its controlled Affiliates to, use commercially reasonable efforts to provide the applicable information in a manner that will not conflict with such confidentiality requirements), Seller, any of its Subsidiaries, any of their respective Affiliates or any of their respective Representatives, (G) reimburse any expenses or provide any indemnities, (H) make any representation, warranty or certification that, in the good faith determination of Seller, is not true, (I) cause any condition to Closing to fail to be satisfied or otherwise result in a breach of this Agreement by Seller, (J) prepare or provide any audited financial statements related to the GES Business or (K) provide or prepare any financial or other information that is not readily available and customarily required for the arrangement of debt financings similar to such Debt Financing (and none of such financial or other information shall be required to be prepared in compliance with Regulation S-X).
(e) Notwithstanding anything in Section 5.15(c) or this Agreement to the contrary, (i) Purchaser shall jointly promptly reimburse Seller or any of its Affiliates for all fees, costs and severally indemnifyexpenses (including attorneys’ fees) incurred by Seller, defend any of its Subsidiaries or any of their respective Affiliates in connection with any Debt Financing (including the cooperation contemplated by Section 5.15(c) (any such fees, costs or expenses (including attorneys’ fees) that are not so reimbursed as of immediately prior to the Closing, the “Outstanding Financing Expenses”)), and (ii) Purchaser shall indemnify and hold harmless the Company Group MembersSeller, each of its Subsidiaries, each of their respective pre-Closing directors, officers, employees Affiliates and each of their respective Representatives and the Seller Group, from and against any and all Damages, liabilities or losses Losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and Debt Financing, the arrangement thereof and/or any information utilized in connection therewith (including any Losses arising from or relating to the actions and/or cooperation contemplated by Section 5.15(c)).
(f) Subject to Seller’s prior written consent in each instance, the logos used by Seller in connection with the GES Business may be used in connection with the Debt Financing; provided that such logos may only be used solely in a manner that is not intended to, other than with respect to nor reasonably likely to, harm, disparage or otherwise place in a negative light or context Seller, any actions of a Seller its Subsidiaries or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 respective Affiliates or Representatives.
(ig) for which Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt by, or availability to, Purchaser or any of the individuals identified in the definition its Affiliates of “knowledge of Sellers” any funds or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers financing or any Company Group Members for all reasonable and documented out-of-pocket costs other financing transaction (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ feesthe Equity Financing or any Debt Financing) incurred by such Seller or Company Group Member in connection with be a condition to Purchaser’s obligations to effect the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working CapitalClosing.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (S&P Global Inc.)
Purchaser Financing. (a) Purchaser acknowledges Subject to the terms and agrees that obtaining financing is not a condition to any conditions of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary necessary, proper or advisable to consummate obtain or cause to be obtained the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing Date on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by set forth in the Debt Commitment Letter and the Fee Letter, including using its reasonable best efforts to: (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iiii) maintain in effect the Debt Commitment Letter and comply with its obligations thereunder; (from ii) negotiate and when executedexecute the Debt Financing Documents on terms contained in the Debt Commitment Letter (including any "flex" provisions related thereto); (iii) satisfy on a timely basis, or obtain a waiver of, the Financing Conditions that are within the Purchaser's control (but excluding any condition where the failure to be so satisfied is a direct result of the Company's failure to furnish information as required under Section 8.09 or the Company's or the Sellers' breach of any of their respective other obligations under this Agreement); (iv) subject to the terms of the Debt Commitment Letter and upon the satisfaction of the Financing Conditions, enforce its rights to consummate the Debt Financing or to cause the Debt Financing Sources and the other persons committing to fund the Debt Documents through Financing to fund the consummation Debt Financing at the Closing under the Debt Commitment Letter; and (v) upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing.
(c) , including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall promptly notify not permit or agree to any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Sellers in writing Debt Commitment Letter if such termination, amendment, modification, waiver or replacement (A) of any material breach or default reduces (or would have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 7.09(a) hereof (as though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions or otherwise expands, amends or modifies any event of the conditions to the receipt of Debt Financing, or circumstance thatotherwise expands, with amends or without notice, lapse modifies any other provision of time or both, the Debt Commitment Letter in a manner that would reasonably be expected to result (x) delay or prevent the funding of the Debt Financing (or satisfaction of the Debt Financing Conditions that are in a material breach the Purchaser's control) on the Closing Date or default(y) by any party adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided that (i) the Purchaser shall not be deemed to have violated this Section 9.07 if the Purchaser shall have (A) provided prior written notice to the Representative of any termination, amendment, modification, waiver or replacement it proposes to take or any other Debt Document event, fact or circumstance that would be restricted by the foregoing provisions of which Purchaser becomes aware, this Section 9.07 and (B) if and when Purchaser becomes aware that any portion demonstrated (to the reasonable satisfaction of the Debt Representative) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the Financing Conditions) that are sufficient to pay all amounts required to be paid by Purchaser pursuant to this Agreement and in connection with the transactions contemplated by this Agreement, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any "flex" provision in the Debt Commitment Letter may not be available for the Funding Requirements, shall constitute a breach of this provision. Purchaser shall promptly deliver to the extent Representative copies of any such unavailability would reasonably be expected to preventtermination, amendment, modification, waiver or materially delayreplacement. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 9.07 if the Closing occurs.
(b) Promptly after request by the Representative, impede or impair the Closing, (C) Purchaser shall inform the Representative in reasonable detail of the receipt status of its efforts to arrange and consummate the Debt Financing. Without limiting the generality of the foregoing, the Purchaser shall give the Representative prompt notice if the Purchaser becomes aware of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to that could reasonably result in Purchaser not receiving the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date. As soon as reasonably practicable after such notice and the date the Representative delivers the Purchaser a written request, the applicable Company Group Purchaser shall be deemed provide information reasonably requested by the Representative relating to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalcircumstances referred to above.
Appears in 1 contract
Sources: Securities Purchase Agreement (NorthStar Asset Management Group Inc.)
Purchaser Financing. (a1) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) The Purchaser shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary reasonably necessary, proper or advisable to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of arrange and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to obtain the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by contained in the Debt Commitment Letter (Letter, including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; andusing its reasonable best efforts to:
(iiia) maintain in effect the Debt Commitment Letter in accordance with its terms (except for such amendments, supplements, modifications, replacements or waivers permitted under this Section 4.16);
(b) negotiate and enter into the Debt Financing Documents on the terms and conditions contemplated in the Debt Commitment Letter;
(from c) pay all commitment or other fees and when executedamounts that become due and payable under or with respect to the Debt Commitment Letter as they become due and payable;
(d) satisfy or obtain the other waiver of all conditions to funding in the Debt Commitment Letter (or Debt Financing Documents through entered into with respect to the Debt Commitment Letter) applicable to the Purchaser to enable the consummation of the Closing.Debt Financing at or prior to the Effective Time; and
(ce) Purchaser shall promptly notify enforce its rights under the Sellers Debt Commitment Letter in writing (A) the event of any material a 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 a material breach or default) by any party to the Debt Commitment Letter that would reasonably be expected to prevent or other materially delay the consummation of the transactions contemplated by this Agreement (it being agreed that any delay to a date that would be later than the Outside Date would be a material delay).
(2) The Purchaser shall comply with the Debt Document Commitment Letter and shall not permit, without the prior written consent of which Purchaser becomes awarethe Corporation, any amendment or modification to be made to, or any waiver or release of any provision or remedy to be made under, the Debt Commitment Letter (Bit being understood that the exercise of any “flex” provisions shall not be deemed to be an amendment, modification, waiver or release) if such amendment, modification, waiver or release would:
(a) reduce the aggregate amount of cash proceeds available from the Debt Financing contemplated by the Debt Commitment Letter to an amount that, together with the Purchaser’s cash on hand and when cash equivalents, would be less than the amount required to satisfy the aggregate Purchase Price payable under the terms of this Agreement and all other obligations payable by the Purchaser becomes aware that pursuant to this Agreement;
(b) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing contemplated by the Debt Commitment Letter in a manner reasonably likely to prevent or delay or impair the ability of the Purchaser to consummate the transactions contemplated by this Agreement or make the funding of any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, (or materially delay, impede or impair the Closing, (C) of the receipt satisfaction of any written notice or other written communication from condition to obtaining any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in by the Debt Commitment Letter Letter) less likely to occur; or
(after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts c) amend or modify any other term in a manner reasonably likely to arrange and obtain alternative financing for any such unavailable portion from prevent or impair the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion ability of the Debt Financing, Purchaser to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of the Purchaser to enforce its rights against any the other party parties to the Debt Commitment Letter or other Debt Document or Letter. Notwithstanding the ability of foregoing: (i) the Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under permitted to amend the Debt Commitment Letter that is limited solely to adding add lenders, lead arrangers, bookrunnersbook-runners, syndication agents, and documentation agents or similar entities that who have not executed the Debt Commitment Letter as of at the date of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days be permitted to assign its rights and obligations under the Debt Commitment Letter to certain wholly-owned Subsidiaries of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, Purchaser to the extent Purchaser does not reimburse permitted under the Company or such applicable Subsidiary for Debt Commitment Letter (provided that any such costs assignment shall not affect the liabilities or expenses on or prior obligations of the Purchaser under the terms of this Agreement and the Purchaser shall cause any such assignee to perform any such obligations to the Closing Date, extent necessary to preserve the applicable Company Group shall be deemed to have a Working Capital Asset as original intent of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working CapitalParties under this Agreement).
Appears in 1 contract
Sources: Share Purchase Agreement (ESAB Corp)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition shall obtain the amounts required to any of its obligations under this Agreement. For pay, inter alia, the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject Cash Consideration pursuant to the terms of this Agreement (including Section 9.2(d))credit facilities described in the Acquisition Debt Confirmations.
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
shall: (i) satisfy, or cause to be satisfied, on a timely basis basis, all conditions conditions, covenants, terms, representations and warranties applicable to Purchaser obtaining in the Debt Financing set forth therein (including Purchaser Credit Agreement and, if applicable, the payment of any fees required as a condition to the Debt Financing Purchaser Bridge Loan Facility; and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to enforce its rights under the Debt Financing on Purchaser Credit Agreement, and, if applicable, the terms (unless otherwise acceptable to Purchaser) and conditions contemplated Purchaser Bridge Loan Facility, including by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation seeking specific performance of the Closingparties thereunder, if necessary to consummate the Transaction.
(c) Purchaser will keep the Company and [name of party redacted] fully informed with respect to all material activity concerning the status of the financings referred to in this Section 6.10 and will give the Company and [name of party redacted] prompt notice of any material change with respect to any such financing. Without limiting the generality of the foregoing, Purchaser shall promptly notify give the Sellers in writing Company and [name of party redacted] prompt notice: (Ai) of any 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 a material give rise to any breach or default) by any party to any definitive document related to the Debt Commitment Letter or other Debt Document Financing of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (Cii) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material or potential breach, default, termination or repudiation by any party to any of the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties definitive documents related to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration a request for amendments or termination waivers thereto that are or could be reasonably expected to be adverse to the timely completion of the Debt Commitment Letter Financing, (iii) if for any reason Purchaser believes in good faith that it will not be able to obtain all or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated terms, in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion manner or from the same sources contemplated by the Acquisition Debt Confirmations or alternative sources (“Alternative Financing”)the definitive documents related to Debt Financing including if Purchaser has any reason to believe that it will be unable to satisfy, in an amount that is sufficienton a timely basis, when taken together with Other Sources and the available portion any term or condition of any definitive document related to the Debt Financing, to consummate and (iv) if the transactions contemplated by this Agreement and to pay Acquisition Debt Confirmations or the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references definitive documents related to the Debt Financing shall be deemed expire or are terminated for any reason. Without limiting the generality of the foregoing, as soon as reasonably practicable, but in any event within two Business Days after the date the Company and [name of party redacted] deliver to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser a written request, Purchaser shall provide any information reasonably requested by the Company and [name of party redacted] relating to any circumstance referred to in clause (1i), (ii), (iii) comply in all material respects with or (iv) of the immediately preceding sentence.
(d) Purchaser will not amend, alter or terminate, or agree to amend, alter or terminate, the Purchaser Credit Agreement, Acquisition Debt Commitment Letter and each Confirmations or any definitive agreement with respect thereto (collectivelyor documentation referred to in this Section 6.10 in any manner that could reasonably be expected to impair, with delay or prevent the Debt Commitment Letterconsummation of the Transaction, the “Debt Documents”), and (2) not permit, in each case without the prior written consent of the SellersCompany and [name of party redacted], provided that Purchaser may replace and amend 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or credit facilities described in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce Acquisition Debt Confirmations so long as the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) is not decreased to an amount less than the Required Funds and such replacement or amendment, as the case may be, would not expand in any material respect the conditions to the Debt Financing as of the date hereof; and in any such event, Purchaser shall disclose to the Company and [name of party redacted] its intention to obtain such alternative financing, shall keep the Company and [name of party redacted] fully informed of the terms thereof; and provided further that, for clarity, nothing herein shall restrict the Purchaser from replacing the Purchaser Bridge Loan Facility with fully funded “high yield” bonds in an aggregate amount required for of not less than US$300 million.
(e) Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereunder, regardless of the reasons why financing is not obtained or whether such reasons are within or beyond the control of Purchaser. For the avoidance of doubt, regardless of whether any such financing is obtained, Purchaser will continue to be obligated to consummate the Transaction, subject to and on the terms contemplated by this Agreement including Section 11.9.
(f) Notwithstanding anything to the contrary contained in this Agreement, but without limiting any of the Company’s rights under this Section 6.10(f) or the rights of the parties to the Debt Financing under the terms thereof, the Company, on behalf of itself and each of its Affiliates, hereby waives, any rights or claims against any Debt Financing Source in connection with this Agreement, the Debt Financing and the transactions contemplated hereby at or thereby, and the Closing Company agrees not to support or (y) impose any new or additional conditioncommence, or otherwise amendpermit any of its Affiliates to support or commence, modify any action or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights proceeding against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with this Agreement, the Debt Financing, the Acquisition Debt Confirmations or in respect of any other than with respect document or theory of law or equity in connection therewith, whether at law, in contract, in tort or otherwise. In particular, the Company agrees that no Debt Financing Source shall be subject to any actions special, consequential, punitive or indirect damages or damages of a Seller or tortious nature. No Debt Financing Source shall have any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which liability whatsoever to any of the individuals identified in the definition Westbrick, [name of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment andparty redacted], in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇[name redacted] ▇▇▇▇▇▇, reimburse Sellers Westbrick Supporting Shareholders or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member their Affiliates in connection with the cooperation described Debt Financing or any way related to this Agreement or any of the transactions contemplated hereby, whether at law, in Section 6.20 andcontract, in tort or otherwise, in each case, whether arising, in whole or in part, out of comparative, contributory or sole negligence by any Debt Financing Source. Notwithstanding anything to the extent contrary in this Agreement, (i) no amendment or modification to this Section 6.10(f) (or amendment or modification with respect to any related definitions as they affect this Section 6.10(f)) shall be effective without the prior written consent of each Debt Financing Source and (b) each Debt Financing Source shall be an express third party beneficiary of, and shall have the right to enforce, this Section 6.10(f). This Section 6.10(f) is intended to benefit and may be enforced by the Debt Financing Sources.
(g) For the avoidance of doubt, nothing contained herein shall in any way limit or modify the rights and obligations of the Purchaser does not reimburse or the Debt Financing Sources set forth under the definitive documents governing the Debt Financing, and nothing herein shall limit or modify the ability of the Company or such applicable Subsidiary for any such costs or expenses on or prior to enforce its rights and remedies against the Closing DatePurchaser hereunder including, the applicable Company Group shall be deemed to have a Working Capital Asset as without limitation, seeking specific performance of the Effective Time in the amount of such unreimbursed costs and expensesPurchaser’s obligations hereunder, which shall be taken into account in the calculation of Effective Time Working Capitalincluding under Section 6.10.
Appears in 1 contract
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For During the avoidance of doubtPre-Closing Period, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary in order to consummate the Debt Financing or consummate alternative obtain debt financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available provide funding for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Transaction Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt DocumentsFinancing”), and (2) it being acknowledged by Purchaser that obtaining the Financing is not permita condition to the Closing. During the Pre-Closing Period, without the prior written consent Purchaser shall keep Seller reasonably apprised of the Sellersstatus of the Financing.
(b) Seller and the Company shall from time to time as and when requested by Purchaser, any material amendment provide reasonable cooperation to Purchaser in connection with Purchaser’s efforts to obtain the Financing, as Purchaser may reasonably request. Without limiting the generality of the foregoing, the Company and Seller shall, and shall use their commercially reasonable efforts to cause the other Seller Representatives to, at the request of Purchaser (i) participate in meetings, drafting sessions and due diligence sessions, (ii) (A) furnish Purchaser, as promptly as reasonably practicable following Purchaser’s request, with such pertinent and customary information, to the extent reasonably available to the Company or modification Seller, regarding the Company and the Acquired Business, as may be reasonably requested by Purchaser to consummate the Financing and with information regarding the Company and the Acquired Business (including information to be made toused in the preparation of one or more information packages regarding the business, or any terminationoperations, rescission or withdrawal of, or any material waiver financial projections and prospects of any provision or remedy under, the Debt Commitment Letter (including Company and the Fee Letter) or other Debt DocumentAcquired Business), in each case, that which is reasonable and customary for the arrangement of loans contemplated by the Financing and to the extent reasonably available to the Company, Seller or the Seller Representatives (individually collectively, the “Required Information”) and (iii) execute and deliver customary certificates or in the aggregate with other documents and instruments relating to guarantees (but not any personal guarantees of any Seller or Affiliates other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate Company), the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, pledge of collateral and other matters ancillary to the receipt of any portion of the Debt Financing in a manner that would as may be reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closingrequested by Purchaser; provided, however, that notwithstanding anything no obligation under any such certificate, document or instrument shall be effective until the Closing and Seller shall not and, prior to the contrary hereinClosing, no consent from the Sellers or any other party hereto Company shall not, be required for (1) to pay any amendment, restatement, amendment and restatement, replacement, supplement, commitment or other modification of, fee or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or other amount in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.
Appears in 1 contract
Sources: Stock Purchase Agreement (GTT Communications, Inc.)
Purchaser Financing. (a) Purchaser acknowledges shall use its reasonable best efforts to arrange, obtain and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions Financing on the terms and conditions described in or contemplated by this Agreement, subject to the terms of this Agreement Financing Commitments (including Section 9.2(dcomplying with any request exercising so-called “flex” provisions contained therein)).
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable after the date hereof (giving effect to taking into account the timing of the Marketing Period), including using reasonable best efforts to (i) maintain in full force and effect the Financing Commitments, (ii) satisfy on a timely basis (taking into account the timing of the Marketing Period) (or obtain the waiver of) all things necessary conditions to consummate funding in the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, Commitments and such definitive agreements to fund be entered into pursuant thereto (including by consummating the Funding Requirements on Equity Financing at or prior to the Closing Date. In furtherance of Closing) applicable to Purchaser, and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(iiiii) negotiate and enter into definitive agreements with respect thereto on terms and conditions described in the Debt Financing Commitments (including any “flex” provisions contained therein) on or prior to the Closing Date (other than modifications to such terms and conditions as are acceptable to Purchaser so long as such modifications would (x) not reasonably be expected to materially delay (taking into account the expected timing of the Marketing Period) or prevent the ability of Purchaser to consummate the transactions contemplated hereby or cause the amount of the Debt Financing, when added with the funds to be provided under the Equity Financing Commitment, to be less than an amount sufficient to consummate the Transaction and (y) otherwise be permitted under the restrictions on amendments and modifications otherwise set forth in this Section 6.10). Purchaser shall, and shall cause its controlled Affiliates to, obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to Closing in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing). Purchaser shall keep Seller informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternative Financing). For the avoidance of doubt, Purchaser shall provide the Company copies of all amendments, modifications or supplements to the Debt Financing Commitments and any fee letter related to the Debt Financing Commitments (provided, that provisions in any amendment, modification or supplement to any fee letter, the fee amounts and the economic terms of market “flex” provisions that are customarily redacted in connection with transactions of this type may be redacted; provided that such redacted terms would not in any event adversely affect the availability, conditionality, enforceability or the aggregate amount of the Debt Financing) promptly upon execution thereof. In the event any portion of the Debt Financing becomes unavailable in the amounts and on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to contemplated in the Debt Financing Sources and Commitments for any reason (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(cA) Purchaser shall promptly notify Seller in writing and (B) Purchaser shall use its reasonable best efforts to obtain, as promptly as practicable following the Sellers occurrence of such event, alternative financing from alternative financing sources (the “Alternative Financing”) in an amount, when added with the funds to be provided under the Equity Financing Commitment, sufficient to consummate the Transaction, which would (i) involve terms in material respects as favorable to Purchaser as are reasonably available in the debt markets for financing of the type set forth in the Debt Financing Commitments as of the date hereof (including any “flex” provisions applicable thereto), (ii) not involve any additional conditions to funding the Debt Financing that are not contained in the Debt Financing Commitments and (iii) not reasonably be expected to prevent, impede or delay the consummation of the Transaction. The Purchaser shall provide Seller, upon reasonable written request, such information as shall be reasonably necessary to allow Seller to monitor the progress of Purchaser’s efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall promptly notify Seller in writing (A) of if there exists any material breach breach, default, rescission, repudiation, cancellation, expiration or default termination by any party to the Financing Commitments or any definitive agreement related thereto (or any event or circumstance that, with or without notice, lapse of time or both, would could reasonably be expected to result in a material breach give rise to any breach, default, rescission, repudiation, cancellation, expiration or defaulttermination) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt by Purchaser of any written notice or other written communication from any Person Financing Source with respect to any (i) actual actual, threatened or alleged material breach, default, rescission, repudiation, cancellation or termination or repudiation by any party to the Debt Commitment Letter Financing Commitments or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations definitive document with respect to thereto. Without the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the SellersCompany, the Purchaser shall not consent or agree to any material amendment amendment, replacement, supplement or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Financing Commitment Letter or the definitive agreements relation to the Financing if such amendment, replacement, supplement, modification or waiver (including the Fee Letter1) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce decreases the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount that would be less than the an amount that would be required for Purchaser to consummate the transactions contemplated hereby at Transaction on the Closing or Date, (y2) impose any imposes new or additional condition, or otherwise amend, modify or expand any condition, conditions to the receipt of the Financing, or otherwise expands, amends or modifies any portion of the Debt Financing conditions to the receipt of the Financing, in a manner that would reasonably be expected to (i) prevent, impede or delay or prevent the Closing Date consummation of the transactions contemplated by this Agreement, or (ii3) would be reasonably expected to adversely impact the ability of Purchaser to enforce its rights against any other party to the Financing Sources. Notwithstanding the foregoing, for the avoidance of doubt, Purchaser may amend, replace, supplement and/or modify the Debt Commitment Letter or other Debt Document or the ability of Purchaser Financing Commitments to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1a) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter that is limited to adding add lenders, lead arrangers, bookrunners, syndication agents, agents or similar entities that have as parties thereto who had not executed the Debt Commitment Letter Financing Commitments as of the date hereof, (b) amend titles, allocations and fee sharing arrangements with respect to existing and additional Financing Sources and (c) increase the amount of this Agreement (including in replacement of a Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing. Upon any amendment, other than with respect supplement, modification, consent or waiver of or relating to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment andFinancing Commitments, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such promptly provide a copy thereof to Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs amendment, supplement or expenses on or prior to the Closing Datemodification has been made in compliance with this Section 6.10(a), the applicable Company Group term “Financing Commitments” shall be deemed mean the Financing Commitments as so amended, replaced, supplemented or modified, including any Alternative Financing. Notwithstanding the foregoing, Purchaser acknowledges that this Agreement and the transactions contemplated hereby are not contingent on Purchaser’s ability to have a Working Capital Asset as of obtain the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working CapitalDebt Financing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ingersoll Rand Inc.)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable its best efforts to takeobtain financing commitments (the "Commitment Letters") on or prior to April 30, or cause 2003, that are reasonably satisfactory to be takenthe Company and that provide for an amount sufficient to fund the Cash Payment, all actions and do, or cause pay amounts owed to be done, as promptly as reasonably practicable the Senior Lenders under the Credit Agreement (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee LetterSenior Lender/CGW Agreement);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated , fund $5 million owed by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related Company to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document▇▇▇▇▇ ▇. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ ▇▇., fund up to $8 million of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection associated with the cooperation described consummation of the transactions contemplated by this Agreement, and fund up to (euro)10 million to satisfy the working capital requirements of the Company's German business (the "Financing"). The Purchaser shall seek to obtain the Commitment Letters on substantially the same terms contemplated by the Financing Arrangements or shall seek Commitment Letters for alternative financing on terms that are not materially less favorable from the Financing Arrangements, or with lenders substantially similar to those indicated in Section 6.20 and7.7 as providing the Financing Arrangements, and will use its best efforts to satisfy any conditions to obtaining such Commitment Letters as detailed in the Financing Arrangements. In addition, Purchaser and the Company shall use their reasonable efforts to negotiate and finalize definitive agreements with respect to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or Financing prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as mailing of the Effective Time Proxy Statement, which obligation shall in no way (i) restrict the conditions that may be imposed in such definitive agreements with respect to the closing of such Financing or (ii) alter the Company's obligation to mail the Proxy Statement to its shareholders at the earliest practicable time. For the avoidance of doubt, obtaining Financing shall not require Purchaser to pay materially greater financing or other fees than as set forth in the Financing Arrangements or require Purchaser to issue any equity to any source of Financing in an amount that is materially more than what is contemplated by the Financing Arrangements. Purchaser shall, for each Commitment Letter, provide the Company with written notice (each a "Commitment Letter Notice") when the negotiation of such unreimbursed costs Commitment Letter has been completed and expensesthe Purchaser is prepared to accept and execute such Commitment Letter. The Company may request, by written notice (each a "Delay Notice") that the Purchaser delay the acceptance and execution of any Commitment Letter for up to 72 hours following the receipt by the Purchaser of the related Delay Notice, if the Company believes in good faith that such additional period is reasonably necessary for the Company to adequately consider any Acquisition Proposal, notice of which shall be taken into account has been made and delivered to the Purchaser in accordance with this Agreement. The Purchaser agrees to comply with such Delay Notice and refrain from the acceptance and execution of the related Commitment Letter unless such delay would, in the calculation good faith belief of Effective Time Working Capitalthe Purchaser, result in the withdrawal of such Commitment Letter by the lender thereunder, or unless such delay would otherwise cause the Purchaser to breach any of its obligations under this Agreement or would cause any of the conditions in this Agreement not to be met.
Appears in 1 contract
Sources: Merger Agreement (Ahl Services Inc)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Agreement, it being understood that notwithstanding anything to the contrary in this Agreement, none of Seller’s or its Affiliates’ performance under this Section 9.2(d))7.17 shall be taken into account with respect to whether any condition set forth Section 8.2(b) shall be deemed satisfied, except to the extent that Seller has knowingly and intentionally materially breached their obligations in this Section 7.17.
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein in the Debt Commitment Letter (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and;
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing;
(iv) fully enforce its rights under the Debt Commitment Letter (to the extent necessary to fund the Closing Payment and other amounts due by Purchaser at the Closing after giving effect to Other Sources of Purchaser); and
(v) in the event that all conditions precedent to the funding of the Debt Financing in the Debt Commitment Letter have been satisfied or waived (or upon funding will be satisfied), consummate the Debt Financing at or prior to the time the Closing is required to occur (to the extent necessary to fund the Closing Payment and other amounts due by Purchaser at the Closing after giving effect to Other Sources of Purchaser).
(c) Purchaser shall promptly notify the Sellers Seller in writing (A) of any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual or potential material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. Without limiting the foregoing, Purchaser shall upon request keep Seller informed on a reasonably current basis in reasonable detail of material developments concerning the Debt Financing. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 7.17 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 7.18 and this Section 6.97.17, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall promptly provide a true, correct and complete copy of each Alternative Financing commitment and any related fee letter(s) to Seller (provided that such fee letter(s) may be redacted solely to remove any fees and economic terms in customary fashion). Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the SellersSeller, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers Seller or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Seller Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ Seller’s obligations under Section 6.20 7.18 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 7.18 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the CompaniesKnowledge” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 thirty (30) days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members Seller for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 7.18.
(e) Seller agrees that: (i) Purchaser and its Affiliates may initiate contact with and, pursue and provide the information contemplated by Section 7.18(a) to Debt Financing Sources in connection with the extent Debt Financing and the transactions contemplated by this Agreement; and (ii) Purchaser does not reimburse and its Affiliates may initiate contact with their lenders and provide the Company or such applicable Subsidiary for any such costs or expenses on or prior to information contemplated by Section 7.18(a), in each case, in connection with the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as transactions contemplated hereunder and who are informed of the Effective Time in the amount confidential nature of such unreimbursed costs information and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalwho are subject to customary confidentiality obligations.
Appears in 1 contract
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis all conditions to Purchaser obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from the same or alternative sources (“Alternative Financing”), in an amount that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ Group’s obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇S▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Civitas Resources, Inc.)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable (giving effect all things necessary, proper or advisable to obtain the Financing on the terms and subject to the timing of conditions described in or contemplated by the Marketing Period)Financing Commitment Letters, all things necessary to consummate including using its reasonable best efforts to: (i) maintain in full force and effect the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficientCommitments, when taken together with Other Sources, to fund the Funding Requirements (ii) satisfy on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfy, or cause to be satisfied, on a timely basis Date all conditions to funding applicable to Purchaser obtaining in the Debt Commitment Letter and/or the definitive agreements with respect thereto (the “Debt Financing set forth therein Documents” and, together with the definitive agreements for the Equity Financing, collectively, the “Financing Documents”) (including by consummating the payment of any fees required as a condition Equity Financing at or prior to the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee LetterClosing);
, (iiiii) negotiate and enter into definitive agreements with respect to the Debt Financing Documents prior to the Closing Date on the terms (unless otherwise acceptable and subject to Purchaser) and the conditions contemplated by described in the Debt Commitment Letter (including any related economic “market flex” provisionsprovisions contained therein) or otherwise on other terms (that would not related to conditionality) that are (A) reasonably acceptable to reduce the aggregate amount of the Debt Financing Sources and below the amount necessary for Purchaser to pay the Required Funds or (B) impose new or material conditions precedent to the receipt of the Debt Financing, in the aggregate not materially less favorablecase of this clause (B), taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any 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 a material breach delay or defaultprevent Closing, (iv) by any party consummate the Debt Financing on or prior to the Debt Commitment Letter or other Debt Document of which Closing Date (it being understood that it is not a condition to Closing under this Agreement for Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of to obtain the Debt Financing or any Alternative Financing) and (v) enforcing its rights under the Debt Financing Commitments (other than through litigation). Purchaser shall obtain the Equity Financing contemplated by the Debt Equity Financing Commitment Letter may not upon satisfaction or waiver of the conditions to Closing in Section 2.2 and Section 2.3 (other than those conditions that by their nature are to be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair satisfied at the Closing, (C) but subject to the satisfaction or waiver of such conditions at the Closing). To the extent requested by Seller from time to time, Purchaser shall keep Seller informed on a reasonably current basis of any material developments in respect of the receipt status of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party the conditions precedent to the Debt Commitment Letter funding of, or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excludingavailability of, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing (or Debt DocumentsAlternative Financing), and upon reasonable request, Purchaser shall provide to Seller copies of all material documents related to the Financing (or Alternative Financing) and or any other document related to the Financing (Dor Alternative Financing) affecting any rights or obligations of Seller or its Affiliates (if any). In the event any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (after taking into account economic the “market flex” terms)provisions thereof) such that the aggregate Debt Financing that is available, when taken together with the Purchaser’s existing cash on hand and the aggregate amount of Equity Financing, is insufficient to satisfy the Required Funds, Purchaser shall shall, as promptly and practicable following the occurrence of such event, use reasonable best efforts to arrange and obtain alternative financing, including from alternative sources, that provides for financing for any such unavailable portion from (A) on terms that are not materially less favorable (including with respect to “market flex” provisions and conditions to the same or alternative sources availability and funding of the Debt Financing), in the aggregate to Purchaser than the terms and conditions set forth in the Debt Commitment Letter (the “Alternative Financing”), (B) in an amount that is sufficientamount, when taken together added with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Purchaser shall (1) comply in all material respects with the Debt Commitment Letter and each definitive agreement with respect thereto (collectively, with the Debt Commitment LetterPurchaser’s existing cash on hand, the “Debt Documents”), Equity Financing Commitments and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing Commitments that are available, that is not less than the Required Funds and (C) which would not (x) involve any new or additional conditions to funding the Debt Financing that would not reasonably be expected to delay or prevent the Closing and (y) reasonably be expected to prevent, impede or delay the consummation of the Debt Financing or such Alternative Financing or the Transactions contemplated by this Agreement. Without limiting the generality of the foregoing, Purchaser shall reasonably promptly notify Seller in a manner that writing (i) if there exists any material breach, default, legal repudiation, cancellation or termination by any party to any Financing Commitment Letter of which the Purchaser becomes aware, which material breach, default, legal repudiation, cancellation or termination would reasonably be expected to (i) delay adversely affect the conditions to, availability of or prevent amount of the Closing Date or applicable Financing, (ii) adversely impact of the ability receipt by Purchaser of Purchaser to enforce its rights against any other party to the Debt Commitment Letter written notice or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent written communication from the Sellers Sponsor or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller actual breach, default, cancellation or termination by such Sponsor, the parties to the Equity Commitment Letter or any Company Group Member Debt Financing Source or (iii) if for any reason Purchaser or Sponsors believes in good faith that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which there is a reasonable possibility that all or any portion of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses Financing will be unavailable on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.;
Appears in 1 contract
Sources: Stock Purchase Agreement (Nn Inc)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable efforts Reasonable Efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary or advisable to arrange and consummate the Debt Financing on the terms and conditions described in or consummate alternative financing transactions or asset sales generating net cash proceeds sufficientcontemplated by the Debt Commitment Letter, when taken together with Other Sources, including using Reasonable Efforts to fund the Funding Requirements on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfymaintain in effect the Debt Commitment Letter until the funding of the Debt Financing at the Closing, (ii) satisfy (or cause to be satisfied, obtain waivers to) on a timely basis all conditions to Purchaser obtaining funding of the Debt Financing set forth therein (including the payment of any fees required as a condition to in the Debt Financing and the exercise of any economic “flex” provisions as provided in and pursuant to the terms of the Fee Letter);
Commitment Letter that are within Purchaser’s control, (iiiii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms (unless otherwise acceptable to Purchaser) and conditions contemplated by described in the Debt Commitment Letter (including subject to the exercise of any related economic “flex” provisionsprovisions contained therein) on or on other terms prior to the Closing and (not related to conditionalityiv) that are (A) reasonably acceptable to upon satisfaction of the conditions set forth in the Debt Commitment Letter, consummate the Debt Financing Sources and (B) in on or prior to the aggregate not materially less favorableClosing. To the extent requested by the Seller Group from time to time, taken as Purchaser shall keep Seller informed on a whole, to Purchaser, so that reasonably current basis of the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect status of the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the ClosingFinancing.
(cb) Purchaser shall promptly notify In the Sellers in writing (A) of event any 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 a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable (after giving effect to any other equity and/or debt financing that may then be available to cover such unavailable amount) on the terms and conditions (including any “flex” provisions) contemplated in the Debt Commitment Letter (after taking into account economic “flex” terms)for any reason and such amount is required by Purchaser to consummate the transactions contemplated hereby and pay all related fees and expenses required to be paid by Purchaser, in each case at the Closing, Purchaser shall promptly notify Seller Group in writing and use reasonable best efforts its Reasonable Efforts to arrange and to obtain alternative financing for any such unavailable portion from alternative or the same or alternative sources on terms not materially less favorable taken as a whole to Purchaser (“Alternative Financing”), as determined in good faith by Purchaser) than those contained in the Debt Commitment Letter in an amount that is sufficientamount, when taken together added with Other Sources and the available portion of the Debt FinancingPurchaser’s other financial resources, sufficient to consummate the transactions contemplated by this Agreement and to pay as promptly as practicable following the Funding Requirements occurrence of such event (the “Alternative Financing”) and the provisions of this Section 6.9 4.10 shall be applicable to the Alternative Financing, and, for the purposes of this Agreement (other than Section 6.20 and this Section 6.93.5), all references to the “Debt Financing Financing” shall be deemed to include such Alternative Financing and Financing, all references to the “Debt Commitment Letter Letter,” or other Debt Documents the “Fee Letter” shall include the applicable documents for the Alternative Financing and all references to “Debt Financing Sources” shall include the applicable parties providing any Alternative Financing. It is understood and agreed that in no event will the commercially reasonable efforts of Purchaser shall (1) comply be deemed or construed to require the Purchaser to pay any fees materially in all material respects with excess of those contemplated by the Debt Commitment Letter and each definitive agreement with respect thereto or the Fee Letter (collectivelyincluding “flex” provisions set forth therein) as in effect on the date of this Agreement, with or agree to any “flex” provision less favorable to Purchaser than the “flex” provisions contained in the Fee Letter as in effect on the date of this Agreement (in either case, whether to secure waiver of any conditions contained therein or otherwise). Without limiting the generality of the foregoing, Purchaser shall promptly notify the Seller Group in writing (A) if Purchaser becomes aware of the existence of any material breach, default, repudiation, cancellation or termination by any party to the Debt Commitment Letter, the “Debt Documents”), and (2) not permit, without the prior written consent of the Sellers, 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, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, case that (individually would materially delay or prevent the Closing or result in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required insufficient financing for Purchaser to consummate the transactions contemplated hereby and pay all related fees and expenses required to be paid by Purchaser, in each case at the Closing, (B) of the receipt by Purchaser of any written notice or other written communication from any Debt Financing Source with respect to any actual repudiation, cancellation or termination by any party to the Debt Commitment Letter or (C) if Purchaser reasonably expects that it will not be able to obtain all or any portion of the Debt Financing on the terms or in the manner contemplated by the Debt Commitment Letter (as such terms and conditions may be modified or adjusted in accordance with the terms thereof and within the limits of the “flex” provisions therein) and such amount is required by Purchaser to consummate the transactions contemplated hereby and pay all related fees and expenses required to be paid by Purchaser, in each case at the Closing. As soon as reasonably practicable, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. Purchaser shall not (without the prior written consent of the Seller Group) consent or agree to any amendment, replacement, supplement or modification to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, replacement, supplement, modification or waiver (w) decreases the aggregate amount of the Debt Financing (except to the extent there is a corresponding increase in an Alternative Financing or other financing) to an amount that would be less than an amount that would be required to consummate the transactions hereunder at the Closing or (yx) impose any imposes new or additional condition, conditions or otherwise amendexpands, modify amends or expand modifies any condition, of the conditions to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) materially delay or prevent the Closing Date Closing, or (ii) adversely impact make the ability funding of Purchaser any portion of the Debt Financing (or satisfaction of any condition to enforce its rights against obtaining any other party portion of the Debt Financing) materially less likely to occur. Upon any amendment, supplement or modification of the Debt Commitment Letter Letter, Purchaser shall provide a copy thereof to Seller Group and the term “Debt Financing” as used herein shall mean the Debt Financing as so amended, replaced, supplemented or other Debt Document or modified. Notwithstanding the ability foregoing, compliance by Purchaser with this Section 4.10(b) shall not relieve Purchaser of Purchaser its obligation to consummate the transactions contemplated by this Agreement whether or not the Debt Financing is available, and Purchaser acknowledges that this Agreement and the transactions contemplated hereby at are not contingent on Purchaser’s ability to obtain the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers Debt Financing (or any other party hereto shall be required for (1) any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunderAlternative Financing) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than specific term with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capitalfinancing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Purchaser Financing. (a) Purchaser acknowledges and agrees that obtaining financing is not a condition to any of its obligations under this Agreement. For the avoidance of doubt, if any financing, including the Debt Financing or any Alternative Financing is not obtained for any reason and the conditions set forth in Section 7.2 are otherwise satisfied (or waived by Purchaser), Purchaser shall continue to be obligated to consummate the transactions contemplated by this Agreement, subject to the terms of this Agreement (including Section 9.2(d)).
(b) Purchaser shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable (giving effect to the timing of the Marketing Period), all things necessary necessary, advisable or proper to consummate the Debt Financing or consummate alternative financing transactions or asset sales generating net cash proceeds sufficient, when taken together with Other Sources, obtain funds sufficient to fund the Funding Requirements Payment Amount on or prior to the Closing Date. In furtherance of and not in limitation of the foregoing, Purchaser shall use commercially reasonable efforts to:
(i) satisfytake, or cause to be satisfiedtaken, all actions and do, or cause to be done, all things necessary, advisable or proper to obtain the proceeds of the Financing on the terms and subject only to the conditions described in the Debt Commitment Letter in an amount sufficient to fund the Payment Amounts as promptly as possible but in any event prior to the Closing Date, including (i) maintaining in effect the Debt Commitment Letter (until the termination thereof in accordance with its terms) and complying with its obligations thereunder, (ii) satisfying on a timely basis basis, and in a manner that will not impede the ability of the Parties to consummate the Transaction promptly upon the Closing Date, all conditions to Purchaser obtaining the Debt funding of the Financing set forth therein (including the payment of any fees required as a condition to in the Debt Financing Commitment Letter and the exercise of any economic “flex” provisions as provided in (iii) negotiating and pursuant to the terms of the Fee Letter);
(ii) negotiate and enter entering into definitive agreements with respect to the Debt Financing on (the terms (unless otherwise acceptable to Purchaser“Definitive Agreements”) and conditions contemplated by the Debt Commitment Letter (including any related economic “flex” provisions) or on other terms (not related to conditionality) that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Purchaser, so that the agreements are in effect no later than the Closing Date; and
(iii) maintain in effect the Debt Commitment Letter and (from and when executed) the other Debt Documents through the consummation of the Closing.
(c) Purchaser shall promptly notify the Sellers in writing (A) of any material breach or default (or any event or circumstance that, consistent with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Debt Commitment Letter or other Debt Document of which Purchaser becomes aware, (B) if and when Purchaser becomes aware that any portion of the Debt Financing contemplated by the Debt Commitment Letter may not be available for the Funding Requirements, to the extent such unavailability would reasonably be expected to prevent, or materially delay, impede or impair the Closing, (C) of the receipt of any written notice or other written communication from any Person with respect to any (i) actual material breach, default, termination or repudiation by any party to the Debt Commitment Letter or other Debt Document or (ii) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) and (D) of any expiration or termination of the Debt Commitment Letter or other Debt Document. If any material portion of the Debt Financing becomes unavailable on the terms and conditions contemplated contained in the Debt Commitment Letter (after taking into account economic including, as necessary, the “flex” termsprovisions contained in any related fee letter), Purchaser shall use reasonable best efforts to arrange and obtain alternative financing for any such unavailable portion from . Without limiting the same or alternative sources (“Alternative Financing”)generality of the foregoing, in an amount the event that is sufficient, when taken together with Other Sources and the available portion of the Debt Financing, to consummate the transactions contemplated by this Agreement and to pay the Funding Requirements and the provisions of this Section 6.9 shall be applicable to the Alternative Financing, and, for the purposes of Section 6.20 and this Section 6.9, all references to the Debt Financing shall be deemed to include such Alternative Financing and all references to conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Transaction, those conditions that by their nature are to be satisfied or waived at Closing and those conditions the failure of which to be satisfied is attributable to a breach by Purchaser of its representations, warranties, covenants or agreements contained in this Agreement) have been satisfied, Purchaser shall cause the Financing Entities to comply with their respective obligations thereunder, including to fund the Financing and to pay related fees and expenses on the Closing Date (including by promptly commencing a litigation proceeding against any breaching Financing Entity or other financial institution to compel such breaching party to provide its portion of the Financing or otherwise comply with its obligations under the Debt Documents shall include Commitment Letter or the applicable documents for the Alternative Financingrelevant Definitive Agreement). Purchaser shall (1) comply in all material respects with its obligations, and enforce its rights, under the Debt Commitment Letter and each definitive agreement with respect thereto Definitive Agreements in a timely and diligent manner.
(collectively, with the Debt Commitment Letter, the “Debt Documents”)b) Purchaser shall not, and (2) shall cause its Affiliates not permitto, without the Seller’s prior written consent: consent of the Sellersor agree to or permit any amendment, any material amendment replacement, supplement, termination or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any provision or remedy under, the Debt Commitment Letter (including the Fee Letter) or other Debt Document, in each case, that (individually or in the aggregate with any other amendments, modifications or waivers) would reasonably be expected to (x) reduce the aggregate amount of the Debt Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof) to an amount less than the amount required for Purchaser to consummate the transactions contemplated hereby at the Closing or (y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (i) delay or prevent the Closing Date or (ii) adversely impact the ability of Purchaser to enforce its rights against any other party to the Debt Commitment Letter or other Debt Document or the ability of Purchaser to consummate the transactions contemplated hereby at the Closing; provided, that notwithstanding anything to the contrary herein, no consent from the Sellers or any other party hereto shall be required for (1) any Definitive Agreements if such amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under the Debt Commitment Letter 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 Debt Financing Source thereunder) or (2) implementation or exercise of any economic “flex” provision.
(d) Purchaser shall jointly and severally indemnify, defend and hold harmless the Company Group Members, their respective pre-Closing directors, officers, employees and Representatives and the Seller Group, from and against any and all Damages, liabilities or losses suffered or incurred by them in connection with Sellers’ and the Company Groups’ obligations under Section 6.20 and any information utilized in connection therewith or in connection with the Debt Financing, other than with respect to any actions of a Seller or any Company Group Member that constitute actual and intentional fraud in the performance of their obligations under Section 6.20 (i) for which any of the individuals identified in the definition of “knowledge of Sellers” or “knowledge of the Companies” had Knowledge and (ii) as determined by a court of competent jurisdiction in a final and non-appealable judgment and, in the event of such determination with respect to a Person, such Person being obligated to reimburse Purchaser for amounts expended by Purchaser in connection with the defense of such Person. Purchaser shall promptly, within 30 days of written request by ▇▇▇▇▇▇▇, reimburse Sellers or any Company Group Members for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ of one firm of outside counsel fees and ratings agencies’ fees) incurred by such Seller or Company Group Member in connection with the cooperation described in Section 6.20 and, to the extent Purchaser does not reimburse the Company or such applicable Subsidiary for any such costs or expenses on or prior to the Closing Date, the applicable Company Group shall be deemed to have a Working Capital Asset as of the Effective Time in the amount of such unreimbursed costs and expenses, which shall be taken into account in the calculation of Effective Time Working Capital.,
Appears in 1 contract