Purchaser Financing. Subject to all of the terms and conditions hereof: (1) Without limiting the generality of Section 7.1, the Purchaser will use its commercially reasonable efforts to satisfy, on a timely basis, all the conditions precedent (to the extent within the control of the Purchaser or requiring action or cooperation by the Purchaser) and to consummate the financings contemplated by the Commitment Letter and Equity Commitment Letter that are within its control and, upon breach, will enforce its rights under the Commitment Letter and Equity Commitment Letter; (2) The Purchaser will use its commercially reasonable efforts to negotiate and enter into definitive credit or loan or other agreements and all other documentation with respect to the financings contemplated in this Section 6.3 as may be necessary for the Purchaser to obtain such funds, on the basis described in this Section 6.3 and otherwise on terms and conditions no less favourable than the Commitment Letter (including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as are acceptable to the Company; or (b) on terms and conditions which do not impair the ability of the Purchaser to perform its obligations hereunder or to effect the Arrangement, as soon as reasonably practicable but in any event prior to the Outside Date. The Purchaser will deliver to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company; (3) The Purchaser will keep the Company reasonably informed with respect to all material activity concerning the status of the financings referred to in this Section 6.3 and will give the Company prompt notice of any material change with respect to any such financings. Without limiting the generality of the foregoing, the Purchaser agrees to notify the Company promptly upon becoming aware, if at any time prior to the Effective Time: (a) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reason, (b) any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letter or the Equity Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement; (4) The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or any definitive agreement or documentation referred to in this Section 6.3 or otherwise modify, alter or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate to the Purchaser and, with respect to conditionality, on terms at least as favorable as those in the Commitment Letter and the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alteration, or replacement that would reasonably be expected to materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, in each case without the prior written consent of the Company; (5) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the Purchaser). Any such replacement commitments will be deemed to constitute the Commitment Letter or Equity Commitment Letter, as the case may be, for the purposes of this Section 6.3 and Section 5.3; (6) For greater certainty, all material non-public or otherwise confidential information regarding the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions set forth in the Confidentiality Agreement; and (7) Notwithstanding anything to the contrary herein or otherwise, the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund the financing required to consummate the Arrangement prior to the end of the Marketing Period (subject to compliance by the Company with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereunder.
Appears in 1 contract
Sources: Arrangement Agreement (Axcan Intermediate Holdings Inc.)
Purchaser Financing. Subject Prior to all of the terms and conditions hereof:
(1) Without limiting the generality of Section 7.1Closing, the Purchaser will Sellers shall use its commercially reasonable efforts to satisfycause the respective officers, employees and advisors, including attorneys and financial and accounting advisors, of the Sellers to, provide to Purchaser such cooperation as is reasonably requested by Purchaser in connection with the arrangement (including marketing efforts in connection therewith) by Purchaser of the Transaction Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Sellers), including (i) participating in a reasonable number of meetings, presentations, calls, drafting sessions, lender or rating agency presentations, road shows, due diligence sessions (including accounting due diligence sessions) and sessions with prospective lenders, underwriters, ratings agencies, initial purchasers and other syndication activities, as applicable, in each case at mutually agreed times, (ii) assisting in the preparation of (A) one or more offering documents, private placement memoranda and/or bank information memoranda and similar marketing documents for the Transaction Financing, including assistance in the preparation of a business description relating to the Sellers’ business to be included in offering documents contemplated by the Transaction Financing and reviewing and commenting on a timely basisthe draft business description, all (B) materials for rating agency presentations and (C) road show materials, other marketing and disclosure documents and customary information in connection with the conditions precedent items in clause (A) and (B), (iii) providing documentation and information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations; (iv) obtaining customary payoff letters, lien terminations and security releases to be delivered at Closing to allow for any repayment, discharge and termination of any Liens on the Purchased Assets; (v) obtaining accountants’ comfort letters at the expense of and as reasonably requested by Purchaser and accountants’ consents for use of their reports in any materials relating to the Transaction Financing (vi) providing promptly the Required Information at such time as it becomes reasonably available to, or reasonably obtainable without liability or material expense by, the Sellers, (vii) using reasonable best efforts to assist Purchaser in obtaining corporate and facilities ratings in connection with the Transaction Financing, and (viii) reasonably cooperating to permit the prospective lenders involved in the Transaction Financing to evaluate the Sellers’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements to the extent within customary and reasonable and otherwise reasonably facilitating the control grant of a security interest in collateral and providing related lender protections; provided that (x) none of the Sellers shall be required to pay any commitment or other similar fee, provide any security, make any representations, provide any indemnification or incur any other liability in connection with the Transaction Financing that are not contingent upon the Closing, other than obligations for which Purchaser or requiring action or cooperation is obligated to reimburse the Sellers, (y) none of the Sellers shall be required to deliver any financial information with respect to a fiscal month that has not yet ended, and (z) Purchaser shall promptly, upon request by the PurchaserSellers, (A) reimburse the Sellers for all reasonable documented out-of-pocket costs (including those of their accountants, consultants, legal counsel, agents and other representatives) and to consummate (B) indemnify and hold harmless the financings contemplated by the Commitment Letter Sellers and Equity Commitment Letter that are within its control andtheir respective Affiliates and representative (including accountants, upon breachconsultants, will enforce its rights under the Commitment Letter legal counsel, agents and Equity Commitment Letter;
(2other representatives) The Purchaser will use its commercially reasonable efforts to negotiate from and enter into definitive credit or loan or other agreements against any and all other documentation liabilities suffered or incurred by any of them in connection with the arrangement of the Transaction Financing, such cooperation or providing any information utilized in connection therewith, except for such liability to which such Person would have incurred regardless of this Section 8.13. None of the Sellers or any of their respective representatives shall have any liability or incur any losses, damages or penalties with respect to the financings contemplated Transaction Financing or any marketing materials, presentations or disclosure documents in connection therewith in the event the Closing does not occur, except as would otherwise be available to Purchaser pursuant to this Agreement. The obligations of Purchaser in the foregoing clause (z) shall survive any termination of this Agreement. Any information provided to Purchaser pursuant to this Section 8.13 shall be subject to the confidentiality provisions of the Commitment Letter. Each Seller hereby consents to the use of the logos of the respective Seller in connection with the syndication or arrangement of the Transaction Financing; provided that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Sellers. For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 6.3 as may be necessary for 8.13 represent the Purchaser sole obligation of the Sellers and their officers, employees and advisors, including attorneys, financial and accounting advisors with respect to obtain such fundscooperation in connection with the arrangement of the Transaction Financing. Notwithstanding anything to the contrary contained in this Agreement, on the basis described including this Section 8.13, nothing in this Section 6.3 and otherwise on terms and conditions no less favourable than the Commitment Letter (including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to 8.13 shall require any such other conditions precedent as are acceptable cooperation to the Company; or (b) on terms and conditions which do not impair the ability of the Purchaser to perform its obligations hereunder or to effect the Arrangement, as soon as reasonably practicable but in any event prior to the Outside Date. The Purchaser will deliver to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
(3) The Purchaser will keep the Company reasonably informed with respect to all material activity concerning the status of the financings referred to in this Section 6.3 and will give the Company prompt notice of any material change with respect to any such financings. Without limiting the generality of the foregoing, the Purchaser agrees to notify the Company promptly upon becoming aware, if at any time prior to the Effective Time: (a) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reason, (b) any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes extent that it will be unable to satisfy, on a timely basis, any term would (A) require the Sellers or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letter or the Equity Commitment Lettertheir respective representatives, as applicable, to waive or requests amendments amend any terms of this Agreement, (B) unreasonably interfere with the ongoing business or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser operations of the transactions contemplated by this Agreement;
Sellers, (4C) The Purchaser shall be permitted require the Sellers to amendtake any action that will conflict with or violate, modifyor result in a violation of, supplementany of the provisions of the respective Seller’s operating agreement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or any definitive partnership agreement or documentation referred to equivalent organizational or governing documents, in this Section 6.3 or otherwise modifyeach case, alter or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate to the Purchaser and, with respect to conditionality, on terms at least as favorable as those in the Commitment Letter and the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alterationhereof, or replacement any applicable Laws or that would reasonably be expected to materially impairresult in a violation or breach of, delay or prevent default under, any reasonable or customary restriction contained in any material Contract in any material respect, (D) result in any significant interference with the consummation prompt and timely discharge of the transactions contemplated by this Agreement, in each case without the prior written consent duties of any of the Company;
Seller’s executive officers, or (5E) If result in any officer or director of the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse Sellers incurring personal liability with respect to any matters relating to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the Purchaser). Any such replacement commitments will be deemed to constitute the Commitment Letter or Equity Commitment Letter, as the case may be, for the purposes of this Section 6.3 and Section 5.3;
(6) For greater certainty, all material non-public or otherwise confidential information regarding the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions set forth in the Confidentiality Agreement; and
(7) Notwithstanding anything to the contrary herein or otherwise, the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund the financing required to consummate the Arrangement prior to the end of the Marketing Period (subject to compliance by the Company with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereunderTransaction Financing.
Appears in 1 contract
Purchaser Financing. Subject From the date of this Agreement until the Closing, the Control Sellers shall, and shall cause their Affiliates to, provide reasonable cooperation to all Purchaser and its Affiliates in connection with the arrangement of financing (which may include debt or equity financing, but in any case for not more than $5 million in the aggregate) necessary for Purchaser to complete the Contemplated Transactions (the “Financing”), including (i) permitting direct contact, upon Purchaser’s request, between prospective lenders and appropriate officers and employees of the terms Wilhelmina Transferred Companies, (ii) preparing and conditions hereof:
providing all financial information reasonably requested by prospective financing sources, (1iii) Without limiting the generality of Section 7.1seeking, the and making arrangements reasonably satisfactory to Purchaser will use and its financing sources with respect to, lien releases, applicable consents, landlord estoppel certificates, pay off letters and similar customary items and (iv) using its commercially reasonable efforts to satisfycause appropriate officers and employees of the Wilhelmina Transferred Companies (A) to be available, on a timely basiscustomary basis and at mutually agreed times and places, all to meet with prospective lenders and investors in presentations, meetings, road shows and due diligence sessions, (B) to assist with the conditions precedent preparation of disclosure documents in connection therewith and (C) to execute and deliver agreements, instruments and certificates of officers of Wilhelmina Transferred Companies to the extent within reasonably necessary to facilitate the control of the Purchaser or requiring action or cooperation by the Purchaser) Financing, and to consummate the financings contemplated by the Commitment Letter and Equity Commitment Letter that are within its control and, upon breach, will enforce its rights under the Commitment Letter and Equity Commitment Letter;
(2) The Purchaser will use its commercially reasonable efforts to negotiate cause legal counsel and enter into definitive credit or loan or other agreements accountants to render legal opinions and all other documentation with respect comfort letters to the financings contemplated extent reasonably necessary in this Section 6.3 as may be necessary for connection with the Financing and not otherwise reasonably available from the legal counsel and/or accountants of Purchaser to obtain such funds, on the basis described in this Section 6.3 and otherwise on terms and conditions no less favourable than the Commitment Letter (including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as or are not reasonably acceptable to the Company; or (b) on terms and conditions which do not impair the ability of the Purchaser to perform its obligations hereunder or to effect the Arrangement, as soon as reasonably practicable but in any event prior to the Outside Date. The Purchaser will deliver to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
(3) The Purchaser will keep the Company reasonably informed with respect to all material activity concerning the status of the financings referred to in this Section 6.3 and will give the Company prompt notice of any material change with respect to any such financings. Without limiting the generality of the foregoing, the Purchaser agrees to notify the Company promptly upon becoming aware, if at any time prior to the Effective Time: (a) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reason, (b) any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any Purchaser’s financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letter or the Equity Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement;
(4) The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or any definitive agreement or documentation referred to in this Section 6.3 or otherwise modify, alter or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate to the Purchaser and, with respect to conditionality, on terms at least as favorable as those in the Commitment Letter and the Equity Commitment Letter as in effect on the date of this Agreementsources); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alteration, or replacement that would reasonably be expected to materially impair, delay or prevent the consummation none of the transactions contemplated by this Agreement, Wilhelmina Transferred Companies or any of their Subsidiaries shall be required to pay any commitment or other similar fee or incur any liability or obligation in each case without connection with the Financing prior written consent of the Company;
(5) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason Closing (other than breach any such fee or other obligation contingent on the Closing). Purchaser shall promptly, upon request of the Company’s obligations under Section 5.3)Control Sellers, reimburse the Purchaser will use its commercially Wilhelmina Transferred Companies for all reasonable efforts to obtainout-of-pocket costs, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated including fees charged by legal counsel and accountants incurred by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to Wilhelmina Transferred Companies or any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the Purchaser)Subsidiaries in connection with its cooperation with arranging the Financing. Any such replacement commitments will be deemed to constitute the Commitment Letter or Equity Commitment Letter, as the case may be, for the purposes of this Section 6.3 and Section 5.3;
(6) For greater certainty, all material non-public or otherwise confidential information regarding the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions set forth in the Confidentiality Agreement; and
(7) Notwithstanding anything to the contrary herein or otherwisecontrary, the terms of the Financing (including but not limited to the amount of any equity or debt financing raised at or prior to Closing and the pricing thereof), and the sources thereof, shall be determined by Purchaser in its sole discretion; provided that no equity or instruments convertible, exercisable or exchangeable for equity shall have no obligation be on terms more favorable to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund source than the financing NCEH Book Value Per Share; provided further that the consent of Control Sellers (which may be withheld in their sole discretion) shall be required to consummate in the Arrangement prior to the end event that personal guarantees, stock pledges or other security or similar commitments are required of the Marketing Period (subject to compliance by the Company Control Sellers in connection with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereundersuch financing.
Appears in 1 contract
Sources: Merger Agreement (New Century Equity Holdings Corp)
Purchaser Financing. Subject (a) Prior to all of the terms and conditions hereof:
(1) Without limiting the generality of Section 7.1Effective Time, the Purchaser will Partnership, the GP and the Corporation shall provide, and shall use its their commercially reasonable efforts to satisfy, on a timely basiscause their Agents to provide, all cooperation reasonably requested by the conditions precedent Purchaser in connection with:
(to i) the extent within the control arrangement of the Purchaser or requiring action or cooperation by the Purchaser) and to consummate the financings Bridge Loans contemplated by the Commitment Letter Letter, including: (i) providing reasonable assistance with the preparation of materials for bank information memoranda and Equity Commitment Letter similar documents required in connection with the Bridge Loans, (ii) executing and delivering guarantee, pledge and security documents and related officer certificates or other documents as may be reasonably requested by the Bank (including certificates with respect to solvency and other customary matters for use in reports in any materials relating to the Bridge Loans) and otherwise reasonably facilitating the guaranteeing of obligations and the pledging of collateral, (iii) furnishing the Purchaser and its financing sources as promptly as reasonably practicable with available financial and other pertinent available information regarding the Corporation, the Partnership Entities and the Partnership Subsidiaries as may be reasonably requested by the Purchaser or its financing sources, including information related to the Corporation, the Partnership Entities or the Partnership Subsidiaries required by regulatory authorities including under applicable “know your client” and anti-money laundering rules and regulations and other cooperation and assistance as may be reasonably requested by the Purchaser, (iv) permitting the prospective lenders involved in such financing to evaluate and appraise the Corporation’s, the Partnership’s and the Partnership Subsidiaries’ current assets and liabilities, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements; and (v) causing the taking of actions by the Corporation, the Partnership Entities and the Partnership Subsidiaries reasonably necessary to permit the completion of the Bridge Financing; and
(ii) the proposed public and/or private offerings by the Purchaser of approximately $423 million of debt and approximately $200 million of equity to enable the Purchaser to pay the cash consideration payable to the Partnership Unitholders and the Corporation Shareholders pursuant to the Plan of Arrangement, as an alternative to or to repay the Bridge Loans (the “Securities Offerings”), including: (i) furnishing the Purchaser as promptly as reasonably practicable with available financial and other pertinent available information regarding the Corporation, the Partnership Entities and the Partnership Subsidiaries and other cooperation and assistance as may be reasonably requested by the Purchaser, including, the relevant financial information required under applicable Securities Laws for a prospectus offering in Canada and the United States or reasonably requested by the proposed underwriters for due diligence purposes; (ii) participating in a reasonable number of roadshow meetings, presentations, due diligence sessions, drafting sessions and sessions with prospective underwriters, investors and rating agencies in connection with the Securities Offerings; (iii) assisting with the preparation of materials for rating agency presentations, information memoranda, and other documents required in connection with the Securities Offerings (including requesting any consents of accountants for use of their reports in prospectuses or in any other materials relating thereto and the delivery of customary comfort letters for prospectus offerings in Canada and the United States); and (iv) causing the taking of actions by the Corporation, the Partnership Entities and the Partnership Subsidiaries reasonably necessary to permit the completion of the Securities Offerings; provided, however, that nothing in this Section 4.11(a) shall require (i) any cooperation to the extent that it would materially and unreasonably interfere in any material respect with the business or operations of the Corporation, the Partnership Entities or the Partnership Subsidiaries; (ii) the Partnership Entities or the Corporation to make any expenditures or incur any costs unless they have first received an appropriate indemnity from the Purchaser indemnifying them for and agreeing to reimburse them for any such expenditures or costs; and (iii) the Partnership Entities or the Corporation to enter into, execute or deliver any guarantee, pledge, security document or other agreement unless such guarantee, pledge, security document or other agreement by its terms and conditions does not become effective until on or after the Effective Time.
(b) The Corporation, the Partnership Entities and the Partnership Subsidiaries hereby consent to the reasonable use of their logos in connection with any of the financings contemplated hereby, provided that such logos are within used in a manner that is not intended to harm or disparage such entities or their marks.
(c) The Purchaser will use commercially reasonable efforts to fulfill and comply with all of its control and, upon breach, will enforce its rights obligations under the Commitment Letter and Equity to satisfy or cause the satisfaction of all of the conditions precedent to the funding of the Bridge Loans on or before the Effective Date (or such earlier date required by the Commitment Letter;
(2) The Purchaser will use its commercially reasonable efforts to negotiate and enter into definitive credit or loan or other agreements and all other documentation with respect to the financings contemplated in this Section 6.3 as may be necessary for the Purchaser to obtain such funds, on the basis described in this Section 6.3 and otherwise on terms and conditions no less favourable than the Commitment Letter (including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as are acceptable to the Company; or (b) on terms and conditions which do not impair the ability of the Purchaser to perform its obligations hereunder or to effect the Arrangement, as soon as reasonably practicable but in any event prior to the Outside Date). The Purchaser will deliver to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
(3) The Purchaser will keep the Company reasonably informed with respect to all material activity concerning the status of the financings referred to in this Section 6.3 and will give the Company prompt notice of any material change with respect to any such financings. Without limiting the generality of the foregoing, the Purchaser agrees to notify the Company Partnership Entities and the Corporation promptly upon becoming aware, if at aware of any time prior to breach or default by the Effective Time: (a) Purchaser under the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire failure or be terminated for any reason, (b) any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition likely failure of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth condition in the Commitment Letter or the Equity Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement;
(4) satisfied. The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute will not terminate or replace amend the Commitment Letter or the Equity Commitment Letter or any definitive agreement or documentation referred to in this Section 6.3 or otherwise modify, alter or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate to the Purchaser and, with respect to conditionality, on terms at least as favorable as those in the Commitment Letter and the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alteration, or replacement that would reasonably be expected to materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, in each case without the prior written consent of the CompanyPartnership Entities and the Corporation.
(d) In the event that the credit facility available to the Partnership that forms part of the Bridge Loans is drawn in whole or in part by the Partnership, the Purchaser covenants and agrees to provide a subordinated guarantee (subordinated to the Bridge Loan and any and all other existing or future indebtedness of the Purchaser) of the 5.87% Senior Notes due August 15, 2017 and 5.97% Senior Notes due August 15, 2019 issued by CPI Power (US) GP, the 5.9% Senior Notes due July 15, 2014 issued by ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLC and the 5.95% medium term notes due June 23, 2036 issued by the Partnership, effective as at the Effective Time and in form and substance satisfactory to the Partnership, acting reasonably.
(e) If the Purchaser determines, in its sole discretion, that any draw is required to be made by the Partnership under the Bridge Loans in order to complete the Arrangement:
(i) the Partnership shall make such draw prior to the Effective Time;
(5ii) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach Plan of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the Purchaser). Any such replacement commitments will Arrangement shall be deemed to constitute the Commitment Letter or Equity Commitment Letter, as the case may be, for the purposes of this Section 6.3 and Section 5.3;
(6) For greater certainty, all material non-public or otherwise confidential information regarding the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated amended in accordance with its terms as is contemplated in Section 4.1(e) of the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions set forth in the Confidentiality AgreementPlan of Arrangement; and
(7iii) Notwithstanding anything to the contrary herein or otherwise, the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing Partnership to loan the financing amount so drawn to fund the financing required Purchaser immediately following the acquisition of Partnership Units by the Purchaser pursuant to consummate the Plan of Arrangement and prior to the end completion of the Marketing Period (subject to compliance by the Company with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereunderArrangement.
Appears in 1 contract
Purchaser Financing. Subject to all (a) During the period from the date of this Agreement and continuing until the earlier of the terms Closing and conditions hereofthe termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide such cooperation and assistance to Purchaser in connection with the arrangement of the Financing as may be reasonably requested by Purchaser, including the following actions:
(1i) Without limiting participating in a reasonable number of meetings with (including to participate in a reasonable number of one-on-one meetings with) the generality Financing Sources and prospective investors in the Financing (and to cause the members of Section 7.1senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, and cooperating reasonably with the marketing efforts of Purchaser will use and the Financing Sources, in connection with all or any portion of the Financing;
(ii) assisting Purchaser and the Financing Sources in the preparation of offering documents, business projections and pro formas, investor presentations, and other similar materials or similar documents required in connection with any of the Financing;
(iii) furnishing to Purchaser and the Financing Sources as promptly as reasonably practical and, in all cases, in a timely manner, (i) audited consolidated balance sheets and the related audited statements of income, shareholder’s equity and cash flows of the Company for the most recently completed fiscal year ended at least ninety (90) calendar days before the Closing Date and (ii) such other financial or pertinent information regarding the Company and its Subsidiaries as may be reasonably available to the Company, and which is (A) reasonably requested by Purchaser, and (B) reasonably necessary in order to consummate the Financing, including in connection with the preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed solely in clause (i) above);
(iv) cooperating reasonably with the Financing Sources’ customary due diligence;
(v) using commercially reasonable efforts to satisfy, on a timely basis, all the conditions precedent (to the extent within the control of the take such actions as are reasonably requested by Purchaser or requiring action the Financing Sources and, if requested by Purchaser or cooperation the Financing Sources, the taking of corporate actions by the Purchaser) Company and its Subsidiaries with respect to consummate the financings contemplated by the Commitment Letter and Equity Commitment Letter that are within its control and, upon breach, will enforce its rights under the Commitment Letter and Equity Commitment Letter;
(2) The Purchaser will use its commercially reasonable efforts to negotiate and enter entering into definitive credit or loan or other agreements and all other documentation with respect to the financings contemplated Financing; provided, that any such corporate actions shall be contingent upon and effective as of the Closing; and
(vi) as promptly as reasonably practical and, in this Section 6.3 as may be necessary for the Purchaser to obtain such fundsall cases, on the basis described in this Section 6.3 a timely manner, providing all documentation and otherwise on terms other information required by regulatory authorities under applicable “know your customer” and conditions no less favourable than the Commitment Letter (anti-money laundering rules and regulations, including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as are acceptable to the Company; or USA PATRIOT Act.
(b) on terms Notwithstanding Section 5.10(a), (1) Purchaser and conditions which do Merger Sub shall ensure that such requested cooperation does not impair unreasonably interfere with the ability ongoing business or operations of the Purchaser Acquired Companies (it being understood and agreed that the Acquired Companies shall not be required to perform its obligations hereunder take any action that unreasonably interferes with the ongoing business or operations of the Acquired Companies); (2) the Acquired Companies shall not be required to effect commit to take any action that (x) is not contingent upon the ArrangementClosing, as soon as reasonably practicable but in any event (y) would be effective prior to the Outside Date. The Purchaser will deliver Closing or (z) would encumber any assets of the Acquired Companies prior to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
Closing; (3) The Purchaser will keep neither the Company reasonably informed Acquired Companies nor any of their respective Representatives shall, in connection with respect the Financing (A) be required to all material activity concerning the status take any action that would result in a violation of the financings referred to in this Section 6.3 and will give the Company prompt notice applicable Law or breach of any material change with respect Contract or subject it to actual or potential liability, (B) be required to pay any such financings. Without limiting the generality of the foregoing, the Purchaser agrees commitment fees or other amounts or make any other payment or incur any other liability or provide or agree to notify the Company promptly upon becoming aware, if at provide any time indemnity prior to the Effective Time: (aClosing or otherwise be required to bear any cost or expense which is not reimbursable pursuant to Section 5.10(c) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reasonbelow, (bC) have any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser liability or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letter or the Equity Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement;
(4) The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or obligation under any definitive agreement in respect of the Financing or documentation referred to in this Section 6.3 any related document or otherwise modify, alter other agreement or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate document related to the Purchaser andFinancing, other than any such liability or obligation of the Acquired Companies following the Closing, (D) be required to incur any other liability in connection with respect to conditionalitythe Financing, on terms at least as favorable as those in other than any other liability incurred by the Commitment Letter and Acquired Companies following the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alterationClosing, or replacement that would reasonably (E) be expected required to materially impairdisclose or provide any information the disclosure of which, delay or prevent the consummation of the transactions contemplated by this Agreement, in each case without the prior written consent of the Company;
(5) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the applicable Acquired Company, is restricted by Contract, applicable Law or is subject to attorney-client privilege. The Acquired Companies do not make any representation or warranty as to any of the materials or information provided to Purchaser, Merger Sub or the Financing Sources pursuant to this Section 5.09(a) or otherwise.
(c) Purchaser shall, promptly upon request by the Stockholders’ Representative or the Company, reimburse the Acquired Companies and/or their respective Representatives for all Reimbursable Financing Expenses. Subject to the limitations in the immediately preceding sentence, Purchaser and Merger Sub shall indemnify and hold harmless the Acquired Companies (prior to the Closing), the Securityholders, each of their respective Affiliates and the respective officers, directors, employees, agents, Representatives, successors and permitted assigns of any of the foregoing (collectively, the “Financing Indemnitees”) against any losses or liabilities such Financing Indemnitees actually incur as a result of any Action related to the Financing. Any such replacement commitments will This Section 5.09(a) shall survive the consummation of the Transactions and the Closing and any termination of this Agreement and shall continue until the date on which the applicable statute of limitations expire, and is intended to benefit, and may be deemed to constitute enforced by, the Commitment Letter or Equity Commitment LetterFinancing Indemnitees and their respective heirs, as the case may beexecutors, for the purposes estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.3 5.09(a) and Section 5.3;shall be binding on all successors and assigns of Purchaser and Merger Sub.
(6d) For greater certaintyEach of Purchaser and Merger Sub acknowledges and agrees that, all material non-public or otherwise confidential information regarding other than the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions obligations set forth in Section 5.5.10(a), the Confidentiality Agreement; and
(7) Acquired Companies do not have any responsibility for any financing that Purchaser or Merger Sub may seek or obtain in connection with the Financing. Notwithstanding anything in this Agreement to the contrary herein or otherwisecontrary, in no event shall the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund the financing required to consummate the Arrangement prior Acquired Companies be in breach of this Agreement (i) if such party uses commercially reasonable efforts in respect of this Section 5.09(a), (ii) due to the end failure to deliver any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or is not otherwise prepared in the ordinary course of business of the Marketing Period Acquired Companies at the time required by Purchaser or Merger Sub, or (subject iii) due to compliance the failure to obtain any comfort with respect to, or review of, any financial or other information by the Company with its obligations under Section 5.3)such party’s accountants. The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereunder.44
Appears in 1 contract
Sources: Merger Agreement
Purchaser Financing. Subject to all (a) During the period from the date of this Agreement and continuing until the earlier of the terms Closing and conditions hereofthe termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide such cooperation and assistance to Purchaser in connection with the arrangement of the Financing as may be reasonably requested by Purchaser, including the following actions:
(1i) Without limiting participating in a reasonable number of meetings with (including to participate in a reasonable number of one-on-one meetings with) the generality Financing Sources and prospective investors in the Financing (and to cause the members of Section 7.1senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, and cooperating reasonably with the marketing efforts of Purchaser will use and the Financing Sources, in connection with all or any portion of the Financing;
(ii) assisting Purchaser and the Financing Sources in the preparation of offering documents, business projections and pro formas, investor presentations, and other similar materials or similar documents required in connection with any of the Financing;
(iii) furnishing to Purchaser and the Financing Sources as promptly as reasonably practical and, in all cases, in a timely manner, (i) audited consolidated balance sheets and the related audited statements of income, shareholder’s equity and cash flows of the Company for the most recently completed fiscal year ended at least ninety (90) calendar days before the Closing Date and (ii) such other financial or pertinent information regarding the Company and its Subsidiaries as may be reasonably available to the Company, and which is (A) reasonably requested by Purchaser, and (B) reasonably necessary in order to consummate the Financing, including in connection with the preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed solely in clause (i) above);
(iv) cooperating reasonably with the Financing Sources’ customary due diligence;
(v) using commercially reasonable efforts to satisfy, on a timely basis, all the conditions precedent (to the extent within the control of the take such actions as are reasonably requested by Purchaser or requiring action the Financing Sources and, if requested by Purchaser or cooperation the Financing Sources, the taking of corporate actions by the Purchaser) Company and its Subsidiaries with respect to consummate the financings contemplated by the Commitment Letter and Equity Commitment Letter that are within its control and, upon breach, will enforce its rights under the Commitment Letter and Equity Commitment Letter;
(2) The Purchaser will use its commercially reasonable efforts to negotiate and enter entering into definitive credit or loan or other agreements and all other documentation with respect to the financings contemplated Financing; provided, that any such corporate actions shall be contingent upon and effective as of the Closing; and
(vi) as promptly as reasonably practical and, in this Section 6.3 as may be necessary for the Purchaser to obtain such fundsall cases, on the basis described in this Section 6.3 a timely manner, providing all documentation and otherwise on terms other information required by regulatory authorities under applicable “know your customer” and conditions no less favourable than the Commitment Letter (anti-money laundering rules and regulations, including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as are acceptable to the Company; or USA PATRIOT Act.
(b) on terms Notwithstanding Section 5.10(a), (1) Purchaser and conditions which do Merger Sub shall ensure that such requested cooperation does not impair unreasonably interfere with the ability ongoing business or operations of the Purchaser Acquired Companies (it being understood and agreed that the Acquired Companies shall not be required to perform its obligations hereunder take any action that unreasonably interferes with the ongoing business or operations of the Acquired Companies); (2) the Acquired Companies shall not be required to effect commit to take any action that (x) is not contingent upon the ArrangementClosing, as soon as reasonably practicable but in any event (y) would be effective prior to the Outside Date. The Purchaser will deliver Closing or (z) would encumber any assets of the Acquired Companies prior to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
Closing; (3) The Purchaser will keep neither the Company reasonably informed Acquired Companies nor any of their respective Representatives shall, in connection with respect the Financing (A) be required to all material activity concerning the status take any action that would result in a violation of the financings referred to in this Section 6.3 and will give the Company prompt notice applicable Law or breach of any material change with respect Contract or subject it to actual or potential liability, (B) be required to pay any such financings. Without limiting the generality of the foregoing, the Purchaser agrees commitment fees or other amounts or make any other payment or incur any other liability or provide or agree to notify the Company promptly upon becoming aware, if at provide any time indemnity prior to the Effective Time: (aClosing or otherwise be required to bear any cost or expense which is not reimbursable pursuant to Section 5.10(c) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reasonbelow, (bC) have any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser liability or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letter or the Equity Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement;
(4) The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or obligation under any definitive agreement in respect of the Financing or documentation referred to in this Section 6.3 any related document or otherwise modify, alter other agreement or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate document related to the Purchaser andFinancing, other than any such liability or obligation of the Acquired Companies following the Closing, (D) be required to incur any other liability in connection with respect to conditionalitythe Financing, on terms at least as favorable as those in other than any other liability incurred by the Commitment Letter and Acquired Companies following the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alterationClosing, or replacement that would reasonably (E) be expected required to materially impairdisclose or provide any information the disclosure of which, delay or prevent the consummation of the transactions contemplated by this Agreement, in each case without the prior written consent of the Company;
(5) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the applicable Acquired Company, is restricted by Contract, applicable Law or is subject to attorney-client privilege. The Acquired Companies do not make any representation or warranty as to any of the materials or information provided to Purchaser, Merger Sub or the Financing Sources pursuant to this Section 5.09(a) or otherwise.
(c) Purchaser shall, promptly upon request by the Stockholders’ Representative or the Company, reimburse the Acquired Companies and/or their respective Representatives for all Reimbursable Financing Expenses. Subject to the limitations in the immediately preceding sentence, Purchaser and Merger Sub shall indemnify and hold harmless the Acquired Companies (prior to the Closing), the Securityholders, each of their respective Affiliates and the respective officers, directors, employees, agents, Representatives, successors and permitted assigns of any of the foregoing (collectively, the “Financing Indemnitees”) against any losses or liabilities such Financing Indemnitees actually incur as a result of any Action related to the Financing. Any such replacement commitments will This Section 5.09(a) shall survive the consummation of the Transactions and the Closing and any termination of this Agreement and shall continue until the date on which the applicable statute of limitations expire, and is intended to benefit, and may be deemed to constitute enforced by, the Commitment Letter or Equity Commitment LetterFinancing Indemnitees and their respective heirs, as the case may beexecutors, for the purposes estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.3 5.09(a) and Section 5.3;shall be binding on all successors and assigns of Purchaser and Merger Sub.
(6d) For greater certaintyEach of Purchaser and Merger Sub acknowledges and agrees that, all material non-public or otherwise confidential information regarding other than the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions obligations set forth in Section 5.5.10(a), the Confidentiality Agreement; and
(7) Acquired Companies do not have any responsibility for any financing that Purchaser or Merger Sub may seek or obtain in connection with the Financing. Notwithstanding anything in this Agreement to the contrary herein or otherwisecontrary, in no event shall the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund the financing required to consummate the Arrangement prior Acquired Companies be in breach of this Agreement (i) if such party uses commercially reasonable efforts in respect of this Section 5.09(a), (ii) due to the end failure to deliver any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or is not otherwise prepared in the ordinary course of business of the Marketing Period Acquired Companies at the time required by Purchaser or Merger Sub, or (subject iii) due to compliance the failure to obtain any comfort with respect to, or review of, any financial or other information by the Company with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereundersuch party’s accountants.
Appears in 1 contract
Purchaser Financing. Subject to all (a) During the period from the date of this Agreement and continuing until the earlier of the terms Closing and conditions hereofthe termination of this Agreement in accordance with its terms, the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, provide such cooperation and assistance to Purchaser in connection with the arrangement of the Financing as may be reasonably requested by Purchaser, including the following actions:
(1i) Without limiting participating in a reasonable number of meetings with (including to participate in a reasonable number of one-on-one meetings with) the generality Financing Sources and prospective investors in the Financing (and to cause the members of Section 7.1senior management and Representatives of the Company to participate in such meetings), and due diligence sessions, and cooperating reasonably with the marketing efforts of Purchaser will use and the Financing Sources, in connection with all or any portion of the Financing;
(ii) assisting Purchaser and the Financing Sources in the preparation of offering documents, business projections and pro formas, investor presentations, and other similar materials or similar documents required in connection with any of the Financing;
(iii) furnishing to Purchaser and the Financing Sources as promptly as reasonably practical and, in all cases, in a timely manner, (i) audited consolidated balance sheets and the related audited statements of income, shareholder’s equity and cash flows of the Company for the most recently completed fiscal year ended at least ninety (90) calendar days before the Closing Date and (ii) such other financial or pertinent information regarding the Company and its Subsidiaries as may be reasonably available to the Company, and which is (A) reasonably requested by Purchaser, and (B) reasonably necessary in order to consummate the Financing, including in connection with the preparation of customary pro forma financial information (excluding any historical financial statements, which are addressed solely in clause (i) above);
(iv) cooperating reasonably with the Financing Sources’ customary due diligence;
(v) using commercially reasonable efforts to satisfy, on a timely basis, all the conditions precedent (to the extent within the control of the take such actions as are reasonably requested by Purchaser or requiring action the Financing Sources and, if requested by Purchaser or cooperation the Financing Sources, the taking of corporate actions by the Purchaser) Company and its Subsidiaries with respect to consummate the financings contemplated by the Commitment Letter and Equity Commitment Letter that are within its control and, upon breach, will enforce its rights under the Commitment Letter and Equity Commitment Letter;
(2) The Purchaser will use its commercially reasonable efforts to negotiate and enter entering into definitive credit or loan or other agreements and all other documentation with respect to the financings contemplated Financing; provided, that any such corporate actions shall be contingent upon and effective as of the Closing; and
(vi) as promptly as reasonably practical and, in this Section 6.3 as may be necessary for the Purchaser to obtain such fundsall cases, on the basis described in this Section 6.3 a timely manner, providing all documentation and otherwise on terms other information required by regulatory authorities under applicable “know your customer” and conditions no less favourable than the Commitment Letter (anti-money laundering rules and regulations, including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as are acceptable to the Company; or USA PATRIOT Act.
(b) on terms Notwithstanding Section 5.10(a), (1) Purchaser and conditions which do Merger Sub shall ensure that such requested cooperation does not impair unreasonably interfere with the ability ongoing business or operations of the Purchaser Acquired Companies (it being understood and agreed that the Acquired Companies shall not be required to perform its obligations hereunder take any action that unreasonably interferes with the ongoing business or operations of the Acquired Companies); (2) the Acquired Companies shall not be required to effect commit to take any action that (x) is not contingent upon the ArrangementClosing, as soon as reasonably practicable but in any event (y) would be effective prior to the Outside Date. The Purchaser will deliver Closing or (z) would encumber any assets of the Acquired Companies prior to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
Closing; (3) The Purchaser will keep neither the Company reasonably informed Acquired Companies nor any of their respective Representatives shall, in connection with respect the Financing (A) be required to all material activity concerning the status take any action that would result in a violation of the financings referred to in this Section 6.3 and will give the Company prompt notice applicable Law or breach of any material change with respect Contract or subject it to actual or potential liability, (B) be required to pay any such financings. Without limiting the generality of the foregoing, the Purchaser agrees commitment fees or other amounts or make any other payment or incur any other liability or provide or agree to notify the Company promptly upon becoming aware, if at provide any time indemnity prior to the Effective Time: (aClosing or otherwise be required to bear any cost or expense which is not reimbursable pursuant to Section 5.10(c) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reasonbelow, (bC) have any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser liability or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letter or the Equity Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement;
(4) The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or obligation under any definitive agreement in respect of the Financing or documentation referred to in this Section 6.3 any related document or otherwise modify, alter other agreement or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate document related to the Purchaser andFinancing, other than any such liability or obligation of the Acquired Companies following the Closing, (D) be required to incur any other liability in connection with respect to conditionalitythe Financing, on terms at least as favorable as those in other than any other liability incurred by the Commitment Letter and Acquired Companies following the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser shall not permit any amendment, modification, supplement, restatement, substitution, alterationClosing, or replacement that would reasonably (E) be expected required to materially impairdisclose or provide any information the disclosure of which, delay or prevent the consummation of the transactions contemplated by this Agreement, in each case without the prior written consent of the Company;
(5) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the applicable Acquired Company, is restricted by Contract, applicable Law or is subject to attorney-client privilege. The Acquired Companies do not make any representation or warranty as to any of the materials or information provided to Purchaser, Merger Sub or the Financing Sources pursuant to this Section 5.09 or otherwise.
(c) Purchaser shall, promptly upon request by the Stockholders’ Representative or the Company, reimburse the Acquired Companies and/or their respective Representatives for all Reimbursable Financing Expenses. Subject to the limitations in the immediately preceding sentence, Purchaser and Merger Sub shall indemnify and hold harmless the Acquired Companies (prior to the Closing), the Securityholders, each of their respective Affiliates and the respective officers, directors, employees, agents, Representatives, successors and permitted assigns of any of the foregoing (collectively, the “Financing Indemnitees”) against any losses or liabilities such Financing Indemnitees actually incur as a result of any Action related to the Financing. Any such replacement commitments will This Section 5.09 shall survive the consummation of the Transactions and the Closing and any termination of this Agreement and shall continue until the date on which the applicable statute of limitations expire, and is intended to benefit, and may be deemed to constitute enforced by, the Commitment Letter or Equity Commitment LetterFinancing Indemnitees and their respective heirs, as the case may beexecutors, for the purposes estates, personal representatives, successors and assigns who are each third party beneficiaries of this Section 6.3 5.09 and Section 5.3;shall be binding on all successors and assigns of Purchaser and Merger Sub.
(6d) For greater certaintyEach of Purchaser and Merger Sub acknowledges and agrees that, all material non-public or otherwise confidential information regarding other than the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions obligations set forth in Section 5.5.10(a), the Confidentiality Agreement; and
(7) Acquired Companies do not have any responsibility for any financing that Purchaser or Merger Sub may seek or obtain in connection with the Financing. Notwithstanding anything in this Agreement to the contrary herein or otherwisecontrary, in no event shall the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund the financing required to consummate the Arrangement prior Acquired Companies be in breach of this Agreement (i) if such party uses commercially reasonable efforts in respect of this Section 5.09, (ii) due to the end failure to deliver any financial or other information that is not currently readily available to the Acquired Companies on the date hereof or is not otherwise prepared in the ordinary course of business of the Marketing Period Acquired Companies at the time required by Purchaser or Merger Sub, or (subject iii) due to compliance the failure to obtain any comfort with respect to, or review of, any financial or other information by the Company with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereundersuch party’s accountants.
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Purchaser Financing. (i) Subject to the terms of this Agreement, Purchaser shall use its reasonable best efforts to take, or cause to be taken, all of actions and to do, or cause to be done, all things necessary or advisable to arrange and obtain the Financing on the terms and conditions hereof:
described in the Commitment Letters or on other terms that would not reduce the amount of proceeds of the Financing below the amount necessary for Purchaser to consummate the Contemplated Transactions on the terms contemplated hereby and would not reasonably be expected to delay the Closing or make funding materially less likely to occur on the Closing Date (1including the exercise of so-called “flex” provisions) Without limiting on or before the generality of Section 7.1, the Purchaser will use its commercially Closing (including using reasonable best efforts to satisfy, on a timely basis, (A) satisfy (or obtain the waiver of) all conditions and covenants applicable to Purchaser in the conditions precedent (Commitment Letters and such definitive agreements to be entered into pursuant to the extent Commitment Letters; provided that with respect to any conditions or covenants that are not within the control of Purchaser, the Purchaser shall only be obligated to use commercially reasonable efforts, and (B) negotiate and enter into definitive agreements with respect to the Financing consistent with the terms and conditions contained in the Commitment Letter or requiring action or cooperation by on other terms no less favorable, in the Purchaseraggregate, to Purchaser than the terms and conditions (including the “flex” provisions) and to consummate the financings contemplated by the Commitment Letter Letters (or on other terms that would not reasonably be expected to delay the Closing or make funding materially less likely to occur on the Closing Date), other than, in each case, (i) a waiver of any closing conditions by lender(s) or their agent or (ii) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letters as of the date hereof or to reassign titles to such parties who had executed the Commitment Letters as of the date hereof. At the written request of the Company, Purchaser shall provide the Company with such information and Equity material documentation as shall be reasonably requested by the Company. It is understood and agreed that “reasonable best efforts” as used in this Section 4.6 shall not require Purchaser to obtain alternative financing if such financing, in Purchaser’s reasonable business judgment, is less favorable in the aggregate (including with respect to fees payable by Purchaser or its Affiliates thereunder) to Purchaser than the Financing contemplated in the Commitment Letters (including with respect to any “flex” provisions).
(ii) Subject to the terms and conditions of the Commitment Letters, Purchaser shall use its reasonable best efforts to cause the Financing Sources and the other Persons providing the Financing to provide the Financing on the Closing Date. In the event any portion of the Financing contemplated in the Commitment Letters becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Commitment Letters, Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to arrange to obtain alternative debt financing from alternative sources in an amount sufficient to consummate the Contemplated Transactions and on terms and conditions no less favorable, in the aggregate, to Purchaser than those in the Commitment Letters as promptly as practicable following the occurrence of such event, provided that in no event shall Purchaser or any of its Affiliates be required to commence any litigation or other legal proceeding against any of its Financing Sources in connection with the Commitment Letters, the Financing (including any alternative financing), this Agreement or the transactions contemplated hereby. Purchaser shall deliver to Sellers true and complete copies of all alternate commitment letters and other Contracts entered into in connection with such alternate Financing (subject to customary redactions of fees in the case of any fee letters) promptly after the execution thereof.
(iii) Purchaser shall promptly (and in any event, within two (2) Business Days) notify the Company in writing (i) of any material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or material default) by Purchaser under the Commitment Letters or any definitive agreements related thereto or, to the Knowledge of Purchaser, any other party to any Commitment Letter that are within or definitive agreement related thereto, (ii) of the receipt by Purchaser or any of its control and, upon Representatives of any written notice or communication from any Person with respect to any (A) actual or potential material breach, default, termination or repudiation by any party to any Commitment Letter or any definitive agreement related thereto (including any proposal by any Financing Source to withdraw, terminate, reduce the amount of financing or delay the timing of financing contemplated by the Commitment Letters) or (B) material dispute or material disagreement between or among any parties to any Commitment Letter or any definitive agreement related thereto, in the case of clauses (A) and (B) above, that could reasonably be expected to result in Purchaser not receiving, or delaying the receipt of, the proceeds of the Financing necessary for Purchaser to consummate the Contemplated Transactions on terms contemplated hereby on the Closing Date, and (iii) if at any time Purchaser believes in good faith that it will not obtain all or any portion of the Financing necessary for the funding of the Transactions on or before the Closing.
(iv) Without the prior written consent of the Company (not to be unreasonably withheld, delayed or conditioned), Purchaser shall not consent to any amendment or modification to (other than pursuant to the exercise of so-called “flex” provisions), or any waiver of any provision or remedy under, any Commitment Letter if such amendment, modification or waiver would impose new or additional conditions precedent or change the conditions precedent set forth therein (unless such expanded or new conditions precedent would not reasonably be expected to prevent, impair or materially delay the Closing), reasonably be expected to materially delay the timing of the Closing, reduce the aggregate cash amount of the funding commitments thereunder below the amount necessary for Purchaser to consummate the Contemplated Transactions on the terms contemplated hereby, materially and adversely impact the ability of Purchaser to enforce its rights under the Commitment Letters or to consummate the Contemplated Transactions (collectively, the “Restricted Commitment Letter and Equity Commitment Letter;
Amendments”) (2) The Purchaser will use its commercially reasonable efforts to negotiate and enter into definitive credit or loan or other agreements and all other documentation with respect for the avoidance of doubt, it is understood that, subject to the financings contemplated limitations set forth in this Section 6.3 as may be necessary for the Purchaser to obtain such funds, on the basis described in this Section 6.3 4.6 and otherwise on terms and conditions no less favourable than the Commitment Letter (including the “Flex Provisions” of the related Fee Letter) and the Equity Commitment Letter, and otherwise: (a) subject only to such other conditions precedent as are acceptable to the Company; or (b) on terms and conditions which do not impair the ability of the Purchaser to perform its obligations hereunder or to effect the Arrangement, as soon as reasonably practicable but in any event prior to the Outside Date. The Purchaser will deliver to the Company correct and complete copies of such executed definitive agreements and documentation promptly when available and drafts thereof from time to time upon request by the Company;
(3) The Purchaser will keep the Company reasonably informed with respect to all material activity concerning the status of the financings referred to in this Section 6.3 and will give the Company prompt notice of any material change with respect to any such financings. Without limiting the generality of the foregoing, the Purchaser agrees to notify the Company promptly upon becoming aware, if at any time prior to the Effective Time: (a) the Commitment Letter or the Equity Commitment Letter referred to in this Section 6.3 will expire or be terminated for any reason, (b) any material default or breach on the part of the Purchaser under any material term or condition of the Commitment Letter or the Equity Commitment Letter or definitive agreement or documentation referred to in this Section 6.3 or if the Purchaser reasonably believes that it will be unable to satisfy, on a timely basis, any term or condition of any funding referred to in this Section 6.3 to be satisfied by it, that in each case would reasonably be expected to impair the ability of the Purchaser to consummate the financing; or (c) any financing source that is a party to the Commitment Letter or the Equity Commitment Letter advises the Purchaser or any Purchaser Party in writing that such source either no longer intends to provide or underwrite any financing referred to in this Section 6.3 on the terms set forth in the Commitment Letters, Purchaser may amend any Commitment Letter to add or the Equity replace lenders, lead arrangers, bookrunners, syndication agents or similar entities). For purposes of this Agreement, references to either “Commitment Letter, as applicable, or requests amendments or waivers thereto that are or could reasonably be expected to be materially delay or prevent the completion by the Purchaser of the transactions contemplated by this Agreement;
(4) The Purchaser shall be permitted to amend, modify, supplement, restate, supersede, substitute or replace the Commitment Letter or the Equity Commitment Letter or any definitive agreement or documentation referred to in this Section 6.3 or otherwise modify, alter or replace one or more debt financing facilities or securities in a manner not less beneficial in the aggregate ” and to the Purchaser and“Financing” (in each case, with respect other than references to conditionality, on such terms for purposes of representations made at least as favorable as those in the Commitment Letter and the Equity Commitment Letter as in effect on the date of this Agreement); provided that the Purchaser ) shall not permit any include such document and such financing contemplated thereby as permitted or required by this Section 4.6 to be amended, modified, replaced or waived, in each case from and after such amendment, modification, supplement, restatement, substitution, alteration, replacement or replacement that would reasonably be expected to materially impair, delay or prevent the consummation of the transactions contemplated by this Agreement, in each case without the prior written consent of the Company;
(5) If the Commitment Letter or the Equity Commitment Letter is terminated or modified in a manner materially adverse to the Purchaser’s ability to complete the transactions contemplated by this Agreement for any reason (other than breach of the Company’s obligations under Section 5.3), the Purchaser will use its commercially reasonable efforts to obtain, as promptly as practicable, and, once obtained, provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by the Commitment Letter and/or the Equity Commitment Letter, as the case may be, on a basis that is not subject to any condition precedent other than the conditions precedent contained in the Commitment Letter or the Equity Commitment Letter, as the case may be, and otherwise on terms and conditions not less favourable to the Purchaser (as determined in the reasonable judgment of the Purchaser). Any such replacement commitments will be deemed to constitute the Commitment Letter or Equity Commitment Letter, as the case may be, for the purposes of this Section 6.3 and Section 5.3;
(6) For greater certainty, all material non-public or otherwise confidential information regarding the Company obtained by the Purchaser or its representatives (including without limitation the Lenders and any of their representatives or advisors or any Purchaser Party) pursuant to Section 5.3 is information which is subject to the Confidentiality Agreement and will be treated in accordance with the Confidentiality Agreement; provided the Purchaser shall be entitled to provide such information to its Lenders and investors in its debt financing and their respective representatives and rating agencies, subject to the confidentiality conditions set forth in the Confidentiality Agreement; and
(7) Notwithstanding anything to the contrary herein or otherwise, the Purchaser shall have no obligation to consummate the Arrangement or to cause the lenders or any other Persons providing the financing to fund the financing required to consummate the Arrangement prior to the end of the Marketing Period (subject to compliance by the Company with its obligations under Section 5.3). The Purchaser acknowledges and agrees that its obtaining financing is not a condition to any of its obligations hereunderwaiver.
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