Debt Financing. (a) Parent has delivered to the Partnership a true and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions. (b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 3 contracts
Samples: Merger Agreement (GasLog Ltd.), Merger Agreement (GasLog Ltd.), Merger Agreement (GasLog Partners LP)
Debt Financing. (a) Parent The Company has delivered to Investor and the Partnership a true Lien Purchasers complete and complete copy correct copies of (i) a fully executed debt commitment letter dated as of from the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth financial institutions named therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”), together with any related fee letter(s) (the “Fee Letter(s)),” pursuant to which such financial institutions (the “Financing Source”) have committed, upon the terms and subject to the conditions set forth therein, to enter into the Amended and Restated Credit Agreement. As of the date of this Agreement, hereof the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, constitutes a valid and binding and enforceable obligation of Parent the Company and, to the Knowledge of Parent, each knowledge of the other Company, the Financing Sources, enforceable against such parties theretoin accordance with its terms, except as enforcement may be limited by the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or similar laws affecting the enforcement of creditors’ rights generally, and subject to principles of equity and public policy. All fees (including amounts previously owed but unpaid) required to be paid in connection with the Bankruptcy Commitment Letter have either been paid in full prior to the date hereof or are fully set forth in the Commitment Letter (or the Fee Letter(s)) and Equity Exceptionwill be duly paid in full or waived, as applicable, as and when due and the Company has otherwise satisfied all of the other terms and conditions required to be satisfied by it pursuant to and at the times required as set forth in the Debt Commitment Letter (or the Fee Letter(s)) on or prior to the date hereof. The Debt Commitment Letter and the Fee Letter(s) have not been amended, modified or terminated on or prior to the date hereof and no such amendment, modification or termination is contemplated as of the date hereof, and any such amendment, modification or termination on or after the date hereof shall not be effective unless consented to in writing by Investor (and by Vital to the extent any such amendment, modification or termination, or the direct or indirect effects thereof, is adverse to Vital or its affiliates, in each case in any manner different from Investor, in which case such amendment, modification, or termination shall not be effective unless consented to in writing by Investor and Vital; and by TopLids to the extent any such amendment, modification or termination is adverse to TopLids or its affiliates, in each case in any manner different from Investor, in which case such amendment, modification, or termination shall not be effective unless consented to in writing by Investor and TopLids). As of the date of this Agreement, hereof no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach or default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of Company under the Debt Commitment Letter. As The execution of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 Amended and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason Restated Credit Agreement is subject to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only no conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are than those expressly set forth in the Debt Commitment Letter. As copies of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered by the Company to the Partnership Investor prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderhereof.
Appears in 3 contracts
Samples: Standby, Securities Purchase and Debt Conversion Agreement (Immersion Corp), Standby, Securities Purchase and Debt Conversion Agreement (Barnes & Noble Education, Inc.), Standby, Securities Purchase and Debt Conversion Agreement
Debt Financing. (a) Parent Verso Paper Holdings has delivered to the Partnership a true received and complete copy of a fully accepted (i) one or more executed debt commitment letter letters, dated as of the date hereofof this Agreement (as may be amended, together modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with all schedulesSection 5.12(a), exhibitsthe “Debt Commitment Letters”), annexes and term sheets attached theretofrom the lenders party thereto (collectively, the “Lenders”), pursuant to which the Debt Financing Sources party thereto Lenders have committed to provide to Merger Subagreed, subject to the terms and conditions thereinthereof, to provide the debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided Letters and establish a new Company term loan facility (the “New NewPage Term Loan Facility”) and a new Company asset-based loan facility (the “New NewPage ABL Facility”) as set forth therein, and Parent has made available to the Partnership pursuant to Company, concurrently with the execution and delivery of this Section 4.6. Assuming the accuracy Agreement, true and complete copies of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds Letters substantially in the aggregate sufficient for Parent form previously reviewed by the Company and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(bii) The Debt Commitment Letter is in full force and effect and is the legalexecuted amendments, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except dated as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this AgreementAgreement (the “Existing Credit Agreement Amendments”) of the Verso ABL Facility and the Verso Cash Flow Facility, no event has occurred whichfrom the requisite lenders party thereto (collectively, with or without noticethe “Existing Lenders”), lapse of time or both, would or would reasonably be expected pursuant to constitute a default or breach which the Existing Lenders have agreed to permit the transactions contemplated by Parent or any of its Subsidiaries or, this Agreement pursuant to the Knowledge of Parentapplicable documentation in connection therewith, any other party theretoand Parent has made available to the Company, of any term of concurrently with the Debt Commitment Letter. As of the date execution and delivery of this Agreement, assuming the satisfaction true and complete copies of the conditions set forth Existing Credit Agreement Amendments substantially in Section 6.1 and Section 6.2 and the performance form previously reviewed by the Partnership of its obligations under this Agreement, Parent does not have Company. Except for any reason fee letters (the “Fee Letters”) relating to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions fees with respect to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount (a complete copy of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related which has been provided to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As Company), as of the date of this Agreement, there are no side letters or other Contractsagreements, contracts or arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the funding or investing, as applicable, of the Debt Financing other than as expressly contained set forth in the Debt Commitment Letter and delivered Letters. There are no conditions precedent or other contingencies related to the Partnership prior to funding of the full amount of the Debt Financing, other than as expressly set forth in the Debt Commitment Letters.
(b) Assuming satisfaction of the conditions set forth in Article VI, (i) Parent does not have knowledge, as of the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent that either Verso Paper Holdings or Merger Sub will be unable to satisfy on a timely basis all material terms and conditions to be satisfied by either Verso Paper Holdings or Merger Sub in any of the Debt Commitment Letters at the time it is required to consummate the Closing hereunder, and (ii) Parent does not have knowledge, as of the date of this Agreement, that any of the Lenders will not be able to perform their respective funding obligations under the Debt Commitment Letters in accordance with their respective terms and conditions.
(c) As of the date of this Agreement, the Debt Commitment Letters and the Existing Credit Agreement Amendments are valid, binding and in full force and effect and enforceable in accordance with their terms against Verso Paper Holdings, and to Parent’s knowledge, the other parties thereto, except that such enforceability (i) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally, and (ii) is subject to the rules governing the availability of specific performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether considered in a proceeding in equity or at law, and, as of the date of this Agreement, no event has occurred that, with or without notice, lapse of time, or both, would reasonably be expected to constitute a default or breach or a failure to satisfy a condition to any obligations precedent on the part of Parent under the terms and conditions of the Sponsor Entities hereunderDebt Commitment Letters and the Existing Credit Agreement Amendments. Parent or its Subsidiaries has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Debt Commitment Letters, Fee Letters and the Existing Credit Agreement Amendments on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date. As of the date hereof, (i) none of the Debt Commitment Letters, Fee Letters or the Existing Credit Agreement Amendments has been amended, restated, supplemented or otherwise modified, or compliance with any of the terms thereof waived, (ii) no such amendment, restatement, supplement, modification or waiver is contemplated and (iii) none of the respective commitments under the Debt Commitment Letters or the Existing Credit Agreement Amendments has been withdrawn, terminated or rescinded in any respect.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Verso Paper Corp.), Merger Agreement (NewPage Holdings Inc.)
Debt Financing. (a) Parent has delivered to the Partnership a true and complete copy of a fully executed debt commitment letter dated FinanceCo has, as of the date hereofof this Agreement, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein of $2,650,000,000 (the “Committed Debt Financing”) with only pursuant to one or more executed commitment letters (the “Commitment Letter”), and one or more executed fee amounts letters, in each case dated on or prior to the date of this Agreement, among one or more substantially wholly-owned Affiliates controlled by Ardagh (the “AMPSA Financing Parties”) and other customary commercially sensitive terms redactedthe debt financing sources parties thereto (the “Commitment Debt Financing Sources”), none copies of which redacted provisions could affect have been provided to GHV, together with the conditionality, enforceability, availability or aggregate principal amount related fee letter(s) (the “Commitment Financing Documents”). All conditions precedent to the funding of the Committed Debt Financing (the “Debt Commitment LetterConditions Precedent”)) are set forth in the Commitment Financing Documents delivered to GHV. As of the date of this Agreement, the Debt Commitment Letter in the form delivered (a) there are no conditions precedent related to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none funding of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any full amount of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Committed Debt Financing other than as the Commitment Conditions Precedent expressly set forth in the Debt Commitment Letter provided Financing Documents delivered to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations GHV, and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The there are no, and there are not contemplated to be any, agreements, side letters or arrangements relating to the Committed Debt Financing that would affect the availability or conditionality of the Committed Debt Financing other than the Commitment Letter Financing Documents delivered to GHV. None of the Commitment Financing Documents have been amended, restated or otherwise modified or waived as of the date of this Agreement, and the respective commitments contained therein have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect as of the date of this Agreement. As of the date of this Agreement, each of the Commitment Financing Documents is in full force and effect and is constitutes the legal, validvalid and binding obligations of the applicable AMPSA Financing Parties (subject to the Enforceability Exceptions), binding and enforceable obligation of Parent and, to the Knowledge of ParentArdagh, each of the other parties thereto, except as enforcement may be limited by and subject enforceable against the AMPSA Financing Parties, and, to the Bankruptcy and Equity ExceptionKnowledge of Ardagh, each of the other parties thereto, in accordance with its terms. As of the date of this Agreement, no event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would or would reasonably be expected to constitute a default default) or breach by Parent or prevent any of its Subsidiaries the Commitment Conditions Precedent from being satisfied, in each case on the part of the AMPSA Financing Parties, or, to the Knowledge of ParentArdagh, any other party parties thereto, of any term of under the Debt Commitment LetterFinancing Documents. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent Ardagh does not have any reason to believe that any party of the Commitment Conditions Precedent will not be satisfied, or that the Debt Financing (or any portion thereof) will be delayed or otherwise not be available to be funded to the Debt Commitment Letter will applicable AMPSA Financing Parties. Ardagh has fully paid, or caused to be unable fully paid, all commitment fees and other fees to satisfy on a timely basis any term or condition of the Debt Commitment Letter extent required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied paid on or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For Agreement in connection with the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderCommitted Debt Financing.
Appears in 2 contracts
Samples: Business Combination Agreement (Ardagh Metal Packaging S.A.), Business Combination Agreement (Gores Holdings v Inc.)
Debt Financing. (a) Parent has delivered to the Partnership Company, as of the date of this Agreement, a true true, complete and complete correct copy of a fully an executed debt commitment letter letter, dated as of the date hereofhereof (the "Debt Commitment Letter"), together with all schedules, exhibits, annexes between Merger Sub and term sheets attached thereto, M&T Bank (the "Debt Financing Sources") pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Subagreed, subject to the terms and conditions thereinthereof, to provide or cause to be provided the debt financing in the aggregate amount amounts set forth therein (the “"Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”"). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, and is a legal, valid and binding obligation of Merger Sub and the other parties thereto. As of the date hereof, no event has occurred which, with amendment or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term modification of the Debt Commitment Letter has been or made and the commitments contained in the Debt Commitment Letter have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, there are no side letters or other agreements to which Merger Sub, Parent or their Affiliates is a party relating to the funding of the Debt Financing other than the Debt Commitment Letter, the Rollover Agreement, the Contribution Agreement and any customary fee letters or engagement letters that do not impact the conditionality or amount of the Debt Financing. Parent and/or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Debt Commitment Letter and/or the Debt Financing that are due and payable on or prior to the date hereof (to the extent not otherwise waived by the Debt Financing Sources). As of the date of this Agreement, assuming the satisfaction accuracy in all material respects of the conditions representations and warranties set forth in Section 6.1 and Section 6.2 Article III and the performance by the Partnership Company of its obligations under set forth in this Agreement, neither Parent does not have nor Merger Sub has any reason reasonable basis to believe that any party to the Debt Commitment Letter (x) it will be unable to satisfy on a timely basis any material term (to the extent such material term is to be performed or complied with prior to the Closing Date) or condition of to close set forth in the Debt Commitment Letter required to be satisfied by itLetter, that in accordance with the conditions terms therein, on or prior to the Debt Financing Closing Date or (y) any condition to close set forth in the Debt Commitment Letter will not otherwise be satisfied satisfied, in accordance with the terms therein, on or prior to the Closing Date (except to the extent that such condition relates to the receipt of the Company Shareholder Approval and/or the Minority Approval, as to which no representation is made in this Section 4.06). There are no conditions precedent related to the funding or investing, as applicable, of the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those than as expressly set forth in or contemplated by the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Mod Pac Corp), Merger Agreement (Mod Pac Corp)
Debt Financing. (a) Parent IMS Health has delivered to the Partnership a true Quintiles true, correct and complete copy of a fully executed debt commitment letter dated copies, as of the date hereofof this Agreement, together with all schedules, exhibits, annexes of the Commitment Letter and term sheets attached thereto, pursuant the Fee Letter to which provide the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, Agreement (i) the Debt Commitment Letter in and the form delivered to the Partnership has Fee Letter have not been amended or modified, and no such amendment or modification is contemplated (except as expressly provided therein), and none of (ii) the obligations and commitments contained in such Debt the Commitment Letter have not been withdrawn, terminated modified or rescinded in any respect and no such withdrawal, termination or rescission is contemplatedrespect. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy As of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13date hereof, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force (x) a valid and effect and is the legal, valid, binding and enforceable obligation of Parent IMS Health and, to the Knowledge knowledge of ParentIMS Health, of each of the other parties thereto, in each case, except as enforcement (A) to the extent that enforceability may be limited by the applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws from time to time in effect affecting generally the enforcement of creditors’ rights and remedies and principles of equity and (B) that the availability of equitable remedies, including specific performance, is subject to the Bankruptcy discretion of the court before which any proceeding may be brought and Equity Exception. (y) in full force and effect.
(b) As of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute (i) a default or breach by Parent or any on the part of its Subsidiaries IMS Health or, to the Knowledge knowledge of ParentIMS Health, any other party parties thereto, of under the Commitment Letter, in each case, that would adversely affect or delay in any term material respect the availability of the Debt Financing at Closing or (ii) assuming (x) no breach by Quintiles or its Subsidiaries of their respective representations and/or obligations, in either case, such that the closing conditions set forth in Section 6.3(a) or 6.3(b) would fail to be satisfied, (y) compliance by Quintiles and its Subsidiaries with Section 5.18(b) and (z) the satisfaction of the conditions set forth in Section 6.1, any failure to satisfy a condition precedent under the Commitment Letter. As of the date of this Agreement, assuming the satisfaction Commitment Letter contains all of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the parties thereunder to make the Debt Financing Sources party available to IMS Health on the Debt Commitment Letter terms therein and all of the provisions that would permit the Lenders to fund reduce the full total amount of the Debt Financing are those expressly set forth in the Debt Commitment LetterFinancing. As of the date of this Agreement, other than the Commitment Letter and the Fee Letter, there are no side letters or other Contractsagreements, contracts or arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub IMS Health or any of their Affiliates its affiliates is a party related to the funding of the full amount of the Debt Financing other than as expressly contained in provided under the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderLetter.
Appears in 2 contracts
Samples: Merger Agreement (IMS Health Holdings, Inc.), Merger Agreement (Quintiles Transnational Holdings Inc.)
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts to obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter and Fee Letter (or replacement financing obtained in compliance with this Section 6.17), including using its reasonable best efforts to (i) except as otherwise permitted in this Section 6.17, maintain in effect the Debt Commitment Letter and Fee Letter in accordance with their terms, (ii) negotiate definitive agreements with respect to the Partnership Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter and Fee Letter (including, as necessary, the “flex” provisions contained in the Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect the ability of Parent to consummate the transactions contemplated herein, (iii) satisfy (or obtain the waiver of) on a true timely basis all conditions in the Debt Commitment Letter, Fee Letter and complete copy the Definitive Agreements within Parent’s control (including payment of all fees and expenses) and comply with its obligations thereunder and (iv) enforce its rights under the Debt Commitment Letter, Fee Letter, and/or Definitive Agreements in the event of any breach or purported breach thereof. Parent shall not, and shall cause its Affiliates not to, take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a fully failure of any of the conditions contained in the Debt Commitment Letter or in any Definitive Agreement.
(b) Parent shall not, without the prior written consent of the Company and EFIH (such consent not to be unreasonably withheld or delayed), permit any amendment or modification to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing or any Bond Financing shall not be deemed a voluntary replacement for purposes of the sentence), the Debt Commitment Letter or Fee Letter or engagement letter with respect thereto if such amendment, modification, waiver or voluntary replacement (i) adds new (or adversely modifies any existing) conditions to the consummation of the Debt Financing as compared to those in the Debt Commitment Letter and Fee Letter, each as in effect on the date of this Agreement, in a manner that would or would reasonably be expected to make any portion of the Debt Financing less likely to be timely obtained, (ii) adversely affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter, Fee Letter, or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, in any material respect, relative to the ability of Parent to enforce its rights against such other parties to the Debt Commitment Letter and Fee Letter, each as in effect on the date hereof or in the Definitive Agreements, (iii) reduces the aggregate amount of the Debt Financing (other than (w) as a result of the decision not to proceed with the acquisition of the Minority Interest and in accordance with Section 1.1 of the Parent Disclosure Letter, (x) if at such time (or prior thereto) there is an equivalent increase in the Equity Commitments, (y) reductions of any amounts thereof constituting increases thereto after the date hereof), or (iv) could otherwise be expected to prevent, impede or delay the consummation of any of the Transactions; provided, that for the avoidance of doubt no consent from the Company or EFIH shall be required: (A) for any amendment, replacement, supplement or modification of the Debt Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed debt commitment letter dated the Debt Commitment Letter as of the date of this Agreement), (B) for implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof, together (C) for any amendment, replacement, supplement or modification to the Debt Commitment Letter or Definitive Agreements so long as such action would not be prohibited by the foregoing clauses (i)-(iv) in this Section 6.17(b) or (D) to add or replace facilities with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which one or more new facilities or with the Bond Financing.
(c) In the event that any portion of the Debt Financing Sources party thereto have committed becomes unavailable, regardless of the reason therefor, Parent will (i) use its reasonable best efforts to provide to Merger Sub, subject to the terms and conditions therein, obtain alternative debt financing in the aggregate amount set forth therein (the “Alternative Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none as promptly as reasonably practicable after the occurrence of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of event that renders the Debt Financing unavailable but no later than the final day of the Marketing Period (the “in an amount sufficient, when taken together with any then-available Debt Financing pursuant to any then-existing Debt Commitment Letter”). As , to consummate the Transactions and to pay related fees and expenses earned, due and payable as of the date of this Agreement, First Closing Date) on terms not less favorable in the aggregate to Parent than those contained in the Debt Commitment Letter and the Fee Letter that the Alternative Debt Financing would replace (taking into account any “flex” provisions) from the same or other sources and which do not include any incremental conditionality to the consummation of such Alternative Debt Financing that are more onerous to Parent or the Company (in the form delivered to aggregate) than the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as conditions set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with Agreement or without notice, lapse otherwise impede; delay or prevent the Transactions and (ii) promptly notify the Company of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to such unavailability and the Knowledge of Parent, any other party thereto, of any term reason therefor.
(d) For purposes of the Recitals and the foregoing Section 6.17(a) through Section 6.17(c), the term “Debt Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Debt Financing arranged in compliance herewith (and any Debt Commitment Letters remaining in effect at the time in question), (ii) the term “Fee Letter” shall be deemed to include any fee letter (or similar agreement) with respect to any Alternative Debt Financing arranged in compliance with this Section 6.17(d), and (iii) the term “Financing Sources” shall be deemed to include any financing sources providing the Alternative Debt Financing or Bond Financing arranged in compliance herewith. As Parent shall keep the Company reasonably informed on a reasonably current basis of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership status of its obligations under this Agreementefforts to consummate the Debt Financing. Parent shall provide the Company with prompt oral and written notice of any material breach, Parent does not have any reason to believe that threatened breach or default by any party to the any Debt Commitment Letter will be unable Letters or the Definitive Agreements of which Parent gains knowledge and the receipt of any notice or other communication from any Lender, guarantor, or other financing source with respect to satisfy on a timely basis any term breach, threatened breach or condition of the default or, termination or repudiation by any party to any Debt Commitment Letter required to be satisfied by it, that Letters or the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub Definitive Agreements or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreementprovision thereof. For the avoidance of doubt, in no event shall the receipt Parent shall, directly or availability of any funds or financing by or to Parentindirectly, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations make all proceeds of the Sponsor Entities Debt Financing received by Parent available to OV2 as necessary for OV2 to perform its obligations hereunder.
Appears in 2 contracts
Samples: Purchase Agreement (Ovation Acquisition I, L.L.C.), Purchase Agreement (Energy Future Competitive Holdings Co LLC)
Debt Financing. (a) Parent AerCap has delivered to the Partnership Parent and the Existing Shareholders a true true, complete and complete correct copy of a fully the executed debt commitment letter letter, dated as of the date hereof (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (except that the amounts of fees, pricing caps, and other economic terms, including those contained in the “market flex” provisions, (none of which would adversely affect the availability of the Debt Financing or would reduce the amount of the Debt Financing below the amount necessary to satisfy the AerCap Entities’ obligation to pay (i) the aggregate Cash Consideration and (ii) any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Financing) set forth therein may be redacted), as may be amended or modified in accordance with the terms hereof, together with all schedulescollectively, exhibitsthe “Debt Financing Commitments”), annexes among AerCap and term sheets attached the Lenders party thereto, pursuant to which the Debt Financing Sources Lenders party thereto have committed to provide to Merger Subcommitted, subject to the terms and conditions set forth therein, to provide debt financing in the aggregate amount amounts set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this AgreementSigning Date, the Debt Commitment Letter Financing Commitments are in full force and effect with respect to, and constitute the form delivered valid, binding and enforceable (subject to the Partnership has Bankruptcy Exceptions) obligation of, AerCap and, to the knowledge of AerCap, the other parties thereto. As of the Signing Date, the Debt Financing Commitments have not been amended or modifiedmodified prior to the Signing Date, as of the Signing Date no such amendment or modification is contemplated and none (other than any amendment or modification pursuant to clause 10.1 to add lenders, lead arrangers, bookrunners, syndication agents or other Lenders who had not executed the Debt Financing Commitments as of the obligations Signing Date and, in connection therewith, to amend the economic and other arrangements with respect to the appointment of such additional lenders, lead arrangers, bookrunners, syndication agents or other Lenders), and the respective commitments contained in such the Debt Commitment Letter Financing Commitments have not been withdrawn, terminated decreased or rescinded in any respect and respect. There are no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter letters or other arrangement relating to agreements, arrangements, contracts or understandings that could adversely affect the availability of the Debt Financing. AerCap has fully paid any and all fees in connection with the Debt Financing other than Commitments due and payable on or prior to the Signing Date and, on the Completion Date, will have paid in full any such amounts required to be paid on or before the Completion Date. Except as expressly set forth in the Debt Commitment Letter provided Financing Commitments, there are no conditions to the Partnership pursuant to this Section 4.6. Assuming the accuracy obligations of the representations and warranties set forth in Section 3.2(a) and compliance by parties thereunder to make the Partnership with Sections 5.2(b)(i) and 5.13, Debt Financing available to AerCap on the terms therein or any contingencies that would permit the Lenders to reduce the total amount of the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, Signing Date (i) no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any a failure to satisfy a condition precedent on the part of its Subsidiaries AerCap or, to the Knowledge knowledge of ParentAerCap, any of the other party thereto, parties to the Debt Financing Commitments under the Debt Financing Commitments and (ii) AerCap has no reason to believe that any of the conditions to the Debt Financing contemplated by the Debt Financing Commitments will not be satisfied or that any term portion of the Debt Commitment LetterFinancing will not be made available to AerCap at the Completion. As of the date of this Agreement, assuming Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreementclause 3, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by itFinancing, that the conditions to when funded in accordance with the Debt Financing Commitments, will provide AerCap with cash proceeds (after netting out original issue discount and similar premiums and charges after giving effect to the maximum amount of flex (including original issue discount flex) provided under the relevant fee letters) on the Completion Date sufficient for the satisfaction of the AerCap Entities’ obligation to (i) pay the aggregate Cash Consideration and (ii) pay any fees and expenses of or payable by the AerCap Entities or AerCap in connection with the Completion and the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderFinancing.
Appears in 2 contracts
Samples: Transaction Agreement (General Electric Co), Transaction Agreement (AerCap Holdings N.V.)
Debt Financing. (a) Parent Concurrently with the execution of this Agreement, Xxxxx has delivered to the Partnership Seller a true and complete copy of a fully the executed debt commitment letter dated (as amended or modified in compliance with the terms of the date Section 6.13 hereof, together with all schedulesthe “Commitment Letter”), exhibitsamong the parties named therein as borrowers (the “Borrowers”) and Capital One, annexes National Association and term sheets attached theretoCIBC Bank USA (the “Lenders”), pursuant to which the Debt Financing Sources party thereto Lenders have committed to provide lend to Merger Sub, subject to the terms and conditions therein, Buyer debt financing in the an aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreementhereof, the Debt Commitment Letter in the form delivered there are no conditions precedent related to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none funding of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any full amount of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as expressly set forth in the Debt Commitment Letter.
(b) As of the date hereof, the Commitment Letter provided (i) is a valid, binding and enforceable obligation of the Borrowers, and, to Buyer’s knowledge, of each of the other parties thereto (subject to the Partnership pursuant Enforceability Exceptions), (ii) is in full force and effect and (iii) has not been amended, modified, terminated or, to this the knowledge of Buyer withdrawn, replaced or rescinded in any respect. As of the date hereof, to Buyer’s knowledge and assuming (x) Seller’s compliance with Section 4.6. Assuming 6.13 (c), (y) the accuracy of the representations and warranties set forth in Section 3.2(a) Article IV and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation satisfaction of the Transactions.
(b) The Debt Commitment Letter is conditions set forth in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, Article VII no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute or result in (A) a breach or default or breach by Parent or any on the part of its Subsidiaries Buyer or, to the Knowledge knowledge of ParentBuyer, any other party parties thereto, in each case, under the terms and conditions of the Commitment Letter, or (B) a failure of any term condition to the Debt Financing to be satisfied by the Borrowers set forth in the Commitment Letter or (C) otherwise result in any portion of the Debt Commitment LetterFinancing in an amount equal to the amount required to deliver the Purchase Price, and all other amounts required to be paid by Buyer hereunder on the Closing Date, including all related fees and expenses required to be paid on the Closing Date by Buyer (the “Required Amount”) being unavailable on the Closing Date. As of the date of this Agreement, assuming Assuming the satisfaction of the conditions set forth in Section 6.1 7.01 and Section 6.2 and 7.02 hereof, as of the performance by the Partnership of its obligations under this Agreement, Parent does not have any date hereof Buyer has no reason to believe that any party to Buyer and the Debt Commitment Letter Borrower will be unable to satisfy on a timely basis any each term or and condition to the funding of the Debt Commitment Letter required Financing to be satisfied by it, that .
(c) Assuming (i) the conditions to set forth in Section 7.01 and Section 7.02 are satisfied at Closing and (ii) the accuracy of the representations and warranties set forth in Article IV, as of the Closing, the aggregate proceeds contemplated by the Debt Financing pursuant to the Commitment Letter, subject to the terms and conditions specified therein, together with any cash available to the Buyer, are sufficient for Buyer to pay the Required Amount in full and to consummate the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available Transactions on the Closing Date. The only Buyer acknowledges and agrees that its obligations hereunder are not subject to any conditions precedent regarding Xxxxx’s or any other contingencies related Person’s ability to obtain any financing for the obligations consummation of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written Transactions and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing (including the Debt Financing) by or to Parent, Merger Sub Buyer or any Affiliate of Parent or Merger Sub its Affiliates be a condition to any obligations the Closing or the consummation of the Sponsor Entities hereunderTransactions. Notwithstanding anything to the contrary in this Agreement, Xxxxxx expressly agrees that a breach of this representation and warranty shall not result in a failure of a condition precedent set forth in Section 7.01 or Section 7.03, if, notwithstanding such breach, Xxxxx is willing and able to consummate the Transactions on the terms otherwise contemplated hereby on the Closing Date.
(d) As of the date hereof, there are no other agreements, side letters or arrangements to which Buyer or the Borrowers are a party or otherwise known to Buyer relating to the Commitment Letter or the Debt Financing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Debt Financing. (a) Concurrently with the execution of this Agreement, Parent has delivered to the Partnership a true Company true, correct and complete copy of a fully the executed debt commitment letter forward underwriting agreement dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing hereof (the “Debt Commitment Letter”). As of ) from the date of this Agreementfinancial institutions party thereto, together with an executed fee letter referenced in the Debt Commitment Letter (the “Debt Fee Letter”) (except that the fee amounts, pricing caps, “flex” provisions and other economic terms (other than covenants) (none of which would adversely affect the amount or availability of the Debt Financing) set forth therein have been redacted), pursuant to which, and subject only to the terms and conditions expressly set forth therein, such financial institutions have committed to provide the amount of financing set forth therein to Parent for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”). Other than the Debt Fee Letter, there are no side letters or other agreements, contracts or arrangements (except for customary engagement letters in respect of the Debt Financing) relating to the Debt Commitment Letter.
(b) The Debt Commitment Letter, in the form delivered to the Partnership so delivered, is in full force and effect and has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated terminated, rescinded or rescinded otherwise amended, supplemented or modified in any respect and no such withdrawal, termination termination, rescission, amendment, supplement or rescission modification is contemplatedcontemplated or pending. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the The Debt Commitment Letter, together with cash on hand in the form so delivered, is a legal, valid and binding obligation of Parent and its SubsidiariesParent, will provide Parent GT Topco and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent on the part of Parent, GT Topco or any of its Subsidiaries or, Merger Sub or to the Knowledge knowledge of Parent, any other party theretoPerson, under any term, or a failure to satisfy any condition, of any term of the Debt Commitment Letter. As Letter or otherwise result in any portion of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Debt Financing contemplated thereby to be unavailable. Neither Parent does not have any nor GT Topco nor Merger Sub has reason to believe that any party to the Debt Commitment Letter will it could be unable to satisfy on a timely basis any term or condition of any of the Debt Commitment Letter required to be satisfied by it, it or that the conditions to any portion of the Debt Financing contemplated thereby will be unavailable to Parent, GT Topco and Merger Sub at the Closing. Parent, GT Topco and Merger Sub have fully paid any and all commitment fees or other fees in connection with the Debt Commitment Letter that are due and payable on or before the date of this Agreement and will not otherwise be satisfied pay in full any such additional amounts that are due on or that before the full amount of the Debt Financing will not be available on the Closing Date. The only Closing.
(c) There are no conditions precedent or other contingencies related to the obligations funding or investing, as applicable, of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those Financing, other than as expressly set forth in the Debt Commitment Letter. As of Letter delivered to the date Company concurrently with the execution of this Agreement, there are no side letters or other Contracts, arrangements or understandings .
(whether oral or written and whether or not legally bindingd) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which The obligations of Parent, GT Topco and Merger Sub or under this Agreement are not contingent in any respect upon the funding of their Affiliates is a party related the amounts contemplated to be funded pursuant to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date Letter. The obligations of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, GT Topco and Merger Sub under this Agreement are not subject to any conditions regarding Parent’s, Merger Sub’s, their respective Affiliates’, or any Affiliate of Parent or Merger Sub be a condition other Person’s ability to any obligations obtain financing for the consummation of the Sponsor Entities hereundertransactions contemplated hereby.
Appears in 2 contracts
Debt Financing. (a) Parent has delivered Parent, GT Topco and Merger Sub acknowledge and agree that the Company and its Affiliates and its and their respective Representatives shall not have any responsibility for, incur any liability to any Person under or be required to take any action that would subject such Person to actual or potential liability under, any financing that Parent, GT Topco and Merger Sub may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 4.11(a) and that Parent, GT Topco and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company and its Affiliates and its and their respective Representatives from and against, and promptly compensate and reimburse the Company and its Affiliates and its and their respective Representatives for, any and all losses, damages, claims, costs, expenses, judgments or penalties suffered or incurred by any of them in connection with the Debt Financing and any information utilized in connection therewith.
(b) Each of Parent, GT Topco and Merger Sub shall use, and shall cause their Affiliates to use, their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing as promptly as practicable on the terms and conditions described in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in the Debt Fee Letter), including using (and causing their Affiliates to use) their respective reasonable best efforts to: (i) maintain in full force and effect the Debt Commitment Letter and the Debt Fee Letter; provided that to the Partnership a true extent the Debt Financing Agreement is executed and complete copy of a fully executed debt commitment letter dated delivered prior to the Closing, maintaining in full force and effect the Debt Financing Agreement, (ii) enter into definitive agreements with respect thereto as of promptly as practicable on the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in the Debt Fee Letter), which agreements shall be in effect as promptly as practicable after the date hereof, together with all schedules, exhibits, annexes but in no event later than the Closing and term sheets attached thereto, pursuant which terms shall not in any respect expand on the conditions to which the funding of the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in at Closing or reduce the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent funded on the Closing Date, (iii) satisfy, or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legalcause their Representatives to satisfy, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term all conditions applicable to Parent, GT Topco, Merger Sub or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing their respective Representatives in the Debt Commitment Letter will not otherwise be satisfied or that such definitive agreements and (iv) draw the full amount of the Debt Financing.
(c) Parent shall not agree to, or permit, any amendments or modifications to, or any waivers under, the Debt Commitment Letter or the Debt Financing will not be available on Agreement without the Closing Date. The only prior written consent of the Company if such amendments, modifications or waivers would (i) reduce the aggregate amount of the Debt Financing, impose new or additional conditions, otherwise expand the then existing conditions precedent or other contingencies related to the obligations funding of the Debt Financing Sources party at the Closing or (ii) otherwise be reasonably likely to prevent or materially delay or impair the Debt Commitment Letter ability of Parent to fund consummate the full amount Merger and the other transactions contemplated by this Agreement.
(d) In the event that any portion of the Debt Financing are those expressly set forth becomes or could become unavailable in the manner or from the sources contemplated in the Debt Commitment Letter. As of , (i) Parent shall immediately so notify the date of this AgreementCompany and (ii) Parent, there are no side letters or other ContractsGT Topco and Merger Sub shall use their respective reasonable best efforts to arrange and obtain, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to negotiate and enter into side letters or other Contractsdefinitive agreements with respect to, arrangements or understandings alternative financing (whether oral or written and whether or the “Alternative Financing”) from alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement upon conditions not legally binding) to which Parentmaterially less favorable, Merger Sub or any of their Affiliates is taken as a party related whole, to the Debt Financing other Parent’s interests than as expressly contained those in the Debt Commitment Letter (including the “flex” provisions contained in the Debt Fee Letter), as promptly as practicable following the occurrence of such event (and delivered in any event no later than the Closing Date. In the event any Alternative Financing is obtained, any reference in this Agreement to “Debt Financing” shall include “Alternative Financing” and any reference to “Debt Commitment Letter” shall include any commitment letter with respect to the Partnership prior Alternative Financing. The definitive agreements entered into pursuant to the date first sentence of this Section 4.11(d) or Section 4.11(b) are referred to in this Agreement. For , collectively, as the avoidance “Debt Financing Agreements.”
(e) Each of doubtParent, in no event shall GT Topco and Merger Sub acknowledges and agrees that neither the receipt obtaining of the Debt Financing or any alternative financing, nor the completion of any issuance of securities contemplated by the Debt Financing or any alternative financing, is a condition to the Closing, and reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Debt Financing or any funds alternative financing, or financing the completion of any such issuance, subject to applicable conditions set forth in Section 5.1 and Section 5.2.
(f) Any breach of the Debt Commitment Letters or the Debt Financing Agreement by or to Parent, Merger Sub or any Affiliate of Parent GT Topco or Merger Sub shall be deemed a condition breach by Parent of this Section 4.11(f). Parent shall (i) promptly furnish the Company complete, correct and executed copies of the Debt Financing Agreements and any commitment letter with respect to the Alternative Financing and any amendment, modification or replacement of any Debt Commitment Letter or Debt Financing Agreements promptly upon their execution, (ii) give the Company prompt written notice of any breach or threatened breach by any party of any of the Debt Commitment Letter or the Debt Financing Agreements of which Parent, GT Topco or Merger Sub becomes aware or any termination or threatened termination thereof, (iii) give the Company prompt written notice of any material dispute or disagreement between or among any parties to any obligations Debt Commitment Letter or any Debt Financing Agreements that would reasonably result in a breach under the Debt Commitment Letter or Debt Financing Agreements, (iv) give the Company prompt written notice if for any reason Parent, GT Topco or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Sponsor Entities hereunderDebt Financing on substantially the terms and conditions contemplated by the Debt Commitment Letter or Debt Financing Agreements, (v) give the Company prompt written notice of the termination or expiration of the Debt Commitment Letters or the Debt Financing Agreements for any reason, (vi) promptly furnish any additional information reasonably requested in writing by the Company relating to the circumstances in clauses (i) through (v) of this Section 4.11(f) and (vii) otherwise keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing (or any alternative financing).
Appears in 2 contracts
Debt Financing. (a) Parent has delivered to the Partnership Company a true and complete correct copy of a fully an executed debt commitment letter dated as of to Parent (the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, “Commitment Letter”) pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sublender named therein (the “Lender”) has committed, subject only to the terms and conditions set forth therein, debt financing in to lend Parent (and certain of Parent’s Subsidiaries) the aggregate amount amounts set forth therein (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement. Parent has also delivered to the Company a true and complete (other than the redactions referenced herein) copy of any fee letter related to the Commitment Letter (it being understood that any such fee letter provided to the Company shall be redacted in a customary manner solely with only fee amounts respect to the fees, pricing caps and other customary commercially sensitive certain economic terms redacted(including economic flex terms), none of which redacted provisions could information does not adversely affect the conditionality, enforceabilityamount, availability or aggregate principal amount conditionality of the Debt Financing funding of the Financing) (the any such fee letter, a “Debt Commitment Fee Letter”). As of the date of this Agreementhereof, the Debt Commitment Letter in and the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(aFee Letters (i) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is are in full force and effect and (ii) have not been withdrawn or terminated or otherwise amended or modified in any respect. As of the date hereof, each Fee Letter and the Commitment Letter, in the form so delivered, is the a legal, valid, valid and binding and enforceable obligation of Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject in each case to the Bankruptcy bankruptcy and Equity Exceptionprinciples of equity exceptions. As of the date hereof, there are no other agreements, side letters, understandings or arrangements relating to the Commitment Letter or Fee Letters, the Financing or any alternative debt financing for the transactions contemplated hereby to which Parent or any of this Agreementits Subsidiaries is a party (other than the Commitment Letter and the Fee Letters). As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by on the part of Parent under any term or any condition of its Subsidiaries or, the Commitment Letter or Fee Letters. There are no conditions precedent or other contingencies related to the Knowledge of Parent, any other party thereto, of any term funding of the Debt full amount of the Financing, other than as expressly set forth in the Commitment Letter. Parent has (or has caused to be) fully paid any and all commitment fees or other fees required by the Commitment Letter or Fee Letters to be paid by it on or prior to the date of this Agreement. As of the date of this Agreementhereof, assuming the accuracy of the representations and warranties set forth in Section 5.1 and the performance by the Company of its obligations under Article VI and the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this AgreementArticle VII, Parent does is not have aware of any reason fact or occurrence that, with or without notice, lapse of time or both, would reasonably be expected to believe that (i) result in any party to of the Debt conditions in the Commitment Letter will be unable to satisfy not being satisfied, or (ii) otherwise result in the Financing not being available on a timely basis any term or condition of and in a sufficient amount, in each case in order to consummate the Debt Commitment Letter required to be satisfied transactions contemplated by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Datethis Agreement. The only conditions precedent or other contingencies related net proceeds from the Financing, together with cash on hand of Parent and its Subsidiaries and the Company and the Subsidiaries, will be sufficient to consummate the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of transactions contemplated by this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or . Parent confirms that it is not legally binding) or commitments a condition to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub Closing or any of their Affiliates is a party related to its other obligations under this Agreement that Parent obtain financing for or in connection with the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of transactions contemplated by this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Pcm, Inc.), Merger Agreement (Insight Enterprises Inc)
Debt Financing. (a) Parent has delivered to the Partnership a Company Parties true and complete copy copies of a fully executed debt commitment letter letters (including all exhibits, schedules, annexes, supplements and term sheets forming part thereof) addressed to Parent, dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing hereof (the “Debt Commitment Letter”). As , from HPSIP (acting through such of the date of this Agreementits affiliates, affiliated or managed funds and separately managed accounts as it deems appropriate, collectively, the Debt Commitment Letter in “Lenders”), a copy of which is attached hereto as Exhibit F, pursuant to which the form delivered Lenders have committed, upon the terms and subject only to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as express conditions set forth in therein, to provide Parent with debt financing for the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties purposes set forth in Section 3.2(a) and compliance by therein, including to support the Partnership with Sections 5.2(b)(i) and 5.13, transactions contemplated hereby (the “Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions”).
(b) The Debt Commitment Letter is the legal, valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto, is in full force and effect and is the legal, valid, binding and enforceable obligation of against Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, in accordance with its terms, except as enforcement enforceability may be limited by and subject bankruptcy, insolvency, reorganization, moratorium or other requirements of Law relating to or affecting creditors’ rights generally or by equitable principles (regardless of whether enforcement is sought at law or in equity).
(c) Except as set forth in the Debt Commitment Letter, there is no condition precedent to the Bankruptcy and Equity Exception. obligations of the Lenders to fund the Debt Financing or, as of the date hereof, any other written agreements, side letters or arrangements to which Parent or any of its Affiliates is party relating to the Debt Financing that contain any conditions precedent to the funding of the Debt Financing or permit the imposition of new or additional conditions precedent or the expansion of any existing conditions precedent to the funding of the Debt Financing.
(d) As of the date hereof, (i) the Debt Commitment Letter has not been amended or modified (and no such amendment or modification is contemplated as of this Agreementthe date hereof) and (ii) the respective commitments set forth in the Debt Commitment Letter have not been withdrawn or rescinded in any respect (and no such withdrawal or rescission is contemplated as of the date hereof), in the case of each of clauses (i) and (ii), in a manner that would reasonably be expected to materially adversely affect the amount or availability of the Debt Financing on the Closing Date. Assuming the accuracy of the information provided to Parent or its Affiliates by or on behalf of the Company Parties or any of its Affiliates, as of the date hereof, no event has occurred whichwhich would result in any breach by Parent of, or constitute a default by Parent under (or an event which with notice or without notice, lapse of time or both, both would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries default), the Debt Commitment Letter or, to the Knowledge knowledge of Parent, any other party thereto, of any term Parent otherwise materially adversely affect the availability of the Debt Commitment Letter. As of Financing on the date of this Agreement, Closing Date (assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and Article VI). As of the performance by the Partnership of its obligations under this Agreementdate hereof, Parent does (i) is not have aware of any fact or occurrence that makes any of the representations or warranties of Parent in the Debt Commitment Letter inaccurate in any material respect, (ii) has no reason to believe that any party to the Debt Commitment Letter it will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required closing to be satisfied by it, that the conditions to the Debt Financing it or its Affiliates contained in the Debt Commitment Letter will not otherwise be satisfied or and (iii) has no reason to believe that the full amount any portion of the Debt Financing will not be made available to Parent on the Closing Date. The only conditions precedent or other contingencies related to the obligations Date (assuming satisfaction of the Debt Financing Sources party conditions set forth in Article VI), including any reason to believe that any of the Lenders will not perform their respective funding obligations under the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written accordance with its terms and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderconditions.
Appears in 2 contracts
Samples: Merger Agreement (Chicken Soup for the Soul Entertainment, Inc.), Merger Agreement (Redbox Entertainment Inc.)
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use its reasonable best efforts, to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary to obtain the Debt Financing on the conditions described in the Debt Commitment Letters, including by (i) maintaining in effect the Debt Commitment Letters (subject to any amendment, replacement, supplement, termination modification or waiver permitted elsewhere under this Section 5.22), (ii) negotiating and entering into (on or prior to the Partnership Closing Date) definitive agreements with respect to the Debt Financing including any joinder agreements, indentures, or credit agreements entered into in connection therewith (the “Definitive Agreements”), that are (A) consistent with the conditions contained in the Debt Commitment Letters (including, as necessary, the “flex” provisions contained in any related fee letter)) or (B) on terms that, with respect to conditionality, are not less favorable to Parent (taken as a whole), (iii) satisfying (or obtaining a waiver of) all conditions in the Debt Commitment Letters and the Definitive Agreements that are applicable to and within the reasonable control of Parent and are necessary to enable the consummation of the Debt Financing concurrently with or prior to Closing, (iv) assuming that all conditions contained in the applicable Debt Commitment Letter have been satisfied, consummating the Debt Financing concurrently with or prior to the Closing, and (v) enforcing its rights under the Debt Commitment Letters, in each case, in a timely and diligent manner; provided that, notwithstanding anything in this Agreement to the contrary, (1) nothing in this Section 5.22(a) will limit the ability of Parent or its Subsidiaries to pursue the Debt Financing in any manner not otherwise prohibited by this Agreement and (2) in no event shall Parent or its Subsidiaries be required to pay any fees or any interest rates applicable to the Debt Financing in excess of those contemplated by the Debt Commitment Letters as in effect on the date hereof (including any flex provisions), or agree to any term (including any flex term) less favorable to Parent than such term contained in such Debt Commitment Letters as in effect on the date hereof.
(b) In the event (x) any portion of the Debt Financing contemplated by the Debt Commitment Letters that is required to fund the Financing Amounts becomes unavailable (including pursuant to the “flex” terms within the Debt Commitment Letters) regardless of the reason therefor, Parent shall promptly notify the Company in writing of such unavailability and shall use its reasonable best efforts, and shall cause each of its Subsidiaries to use their reasonable best efforts, to obtain as promptly as practicable following the occurrence of such event, alternative debt or other financing for any such unavailable portion from alternative sources or (y) Parent decides, in its sole discretion, to replace all or any portion of the Debt Financing with alternative debt or other financing (in each case, an “Alternative Financing”), such Alternative Financing shall: (A) be in an amount that, when taken together with the aggregate amount of net proceeds available from the Debt Financing, if any, that remains available and cash and cash equivalents immediately available to Parent at the Closing, is sufficient to pay the Financing Amounts; (B) not be subject to any conditions precedent to funding that are additional to, expand on or are more onerous on the Parent and its Affiliates than, the conditions set forth in the Debt Commitment Letters except any customary conditions for a bridge facility or a bond financing that (taken as a whole) are not materially less favorable to Parent (in the reasonable judgment of Parent) than the conditions (taken as a whole) contained in the Debt Commitment Letters and (C) not have any of the effects described in clauses (2) through (4) of Section 5.22(c). Parent or Merger Sub shall provide the Company, upon reasonable request, with information and documentation regarding the Debt Financing as shall be reasonably necessary or advisable to allow the Company to monitor the progress of the Debt Financing activities. Without limiting the generality of the foregoing, Parent shall notify the Company as soon as reasonably practicable (x) if the Parent becomes aware that there exists any actual or threatened (in writing) material breach, default, repudiation, cancellation or termination of a Debt Commitment Letter or any Definitive Agreement by any Financing Party thereto of which the Parent has become aware or if Parent has received written communication from any Financing Party with respect to any actual material breach, default, repudiation, cancellation or termination of any provision in a Debt Commitment Letter or any Definitive Agreement thereof by any Financing Party thereto or (y) if Parent determines in good faith that it will not be able to obtain any or all of the Debt Financing on the conditions described in the Debt Commitment Letters prior to Closing. Parent shall deliver to the Company true and complete copy copies of a fully executed debt commitment letter dated as of the date hereof, together all definitive agreements in connection with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt an Alternative Financing Sources party thereto have committed to provide to Merger Sub, (provided that such copies may be subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) customary redactions with only respect to fee amounts and pricing and other customary commercially sensitive terms redactedeconomic terms, including “market flex” provisions, none of which redacted provisions could would reasonably be expected to affect the conditionality, enforceability, availability availability, termination or aggregate principal amount of the Debt Financing or the Debt Commitment Letters). The provisions of this Section 5.22 shall apply to any Alternative Financing mutatis mutandis. The foregoing notwithstanding, compliance by Parent with this Section 5.22 shall not relieve Parent of its obligations to consummate the transactions contemplated by this Agreement whether or not the Debt Financing is available.
(c) Parent and its Subsidiaries shall have the right from time to time to amend, replace, restate, supplement, terminate, or otherwise modify, or waive any right or provision under, any Debt Commitment Letter or Definitive Agreement, including to reduce available funding under or to terminate any such Debt Commitment Letter or Definitive Agreement in order to obtain alternative sources of financing in lieu of all or a portion of the Debt Financing, including by way of one or more offerings of debt or other securities; provided that, none of Parent nor any of its Subsidiaries shall (without the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed) consent or agree to any amendment, replacement, supplement, termination or modification to, or any waiver of any provision under, the Debt Commitment Letters or the Definitive Agreements (it being understood that the exercise of any “market flex” provisions set forth in the Initial Debt Commitment Letter (or any similar “market flex” provisions set forth in other Debt Commitment Letters; provided that such provisions (taken as a whole) are not materially less favorable to Parent than the “market flex” provisions set forth in the Initial Debt Commitment Letter”) shall not be deemed an amendment, replacement, supplement, termination, modification or waiver for this purposes) if such amendment, replacement, supplement, termination, modification or waiver (1) decreases (or has the effect of decreasing) the aggregate amount of the Debt Financing (including, for greater certainty, any Alternative Financing) to an amount that, when taken together with cash or cash equivalents immediately available to Parent and the Company on the Closing Date, would be less than the amount that would be required to pay the Financing Amounts, (2) would reasonably be expected to prevent, materially delay or materially impede the consummation of the Merger or prevent or materially impede the repayment or refinancing of a material portion of any indebtedness of the Company that constitutes “Refinanced Indebtedness” (as defined in the Initial Debt Commitment Letter). As , in each case, as contemplated by this Agreement, (3) materially adversely impacts the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letters or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, (4) imposes material obligations on the Company or any of its Subsidiaries that would be effective prior to Closing, or (5) adds new (or adversely modifies in any material respect any existing) conditions precedent to the consummation of all or any portion of the Debt Financing (except any customary conditions for a bridge facility or a bond financing that (taken as a whole) are not (in the reasonable judgment of Parent) materially less favorable to Parent than the conditions (taken as a whole) contained in the Debt Commitment Letters); provided, that, notwithstanding the foregoing or anything else in the Agreement to the contrary, Parent and its Subsidiaries may amend, replace, supplement and/or modify any of the Debt Commitment Letters or Definitive Agreements to add or appoint, as applicable, lenders, arrangers, bookrunners, underwriters, agents, syndication agents or similar entities as parties thereto who had not executed the Debt Commitment Letters as of the date of this Agreement, provide for the assignment and reallocation of a portion of the financing commitments contained therein and to grant customary approval rights to such additional entities in connection with their addition or appointment or increase the amount of commitments under the Debt Commitment Letter in the form delivered to the Partnership has not been amended Letters or modifiedany or Definitive Agreements. Upon executing any amendment, no such amendment supplement or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided Letters, Parent shall, as soon as reasonably practicable (and in any event, within two (2) Business Days), provide a copy thereof to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
Company (b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement provided that such copy may be limited by and subject to the Bankruptcy customary redactions with respect to fee amounts, pricing and Equity Exception. As other economic terms, including “market flex” provisions, none of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or which redacted provisions would reasonably be expected to constitute a default affect the conditionality, enforceability, availability, termination or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full aggregate principal amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related contemplated by such Debt Commitment Letters) and, to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreementextent such amendment, there are no side letters supplement or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.modification has
Appears in 2 contracts
Samples: Merger Agreement (Enerflex Ltd.), Merger Agreement (Exterran Corp)
Debt Financing. (a) As of the date of this Agreement, Parent has and the Merger Subs have delivered to the Partnership Company a true and complete copy of an executed commitment letter, including all exhibits, schedules and annexes thereto, in each case, as amended, supplemented or otherwise modified from time to time (the “Debt Commitment Letter”) and a fully copy of an executed fee letter (which fee letter may be redacted with respect to the fee amounts and economic terms contained therein, which redacted information does not relate to the amount or conditionality of the debt commitment letter financing contemplated by the Debt Commitment Letter) from the Financing Sources, dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which which, among other things, the Debt Financing Sources party thereto have committed to provide debt financing to Parent and the Merger Sub, Subs in an aggregate amount set forth therein and subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of ). Assuming the Debt Financing (is funded in accordance with the “conditions set forth in the Debt Commitment Letter”Letter and assuming that each of the conditions set forth in Section 8.1 and Section 8.2 of this Agreement is satisfied at Closing, as of the date hereof, the funds provided by the Debt Financing, together with any cash on hand, available lines of credit and other sources of immediately available funds, will be sufficient for Parent to pay (a) all amounts owing under the Company Notes (after giving effect to the net cash proceeds from the transactions contemplated by the WBA Asset Purchase Agreement available therefor, less the Payoff Amounts required under Section 7.14(b)), (b) the Additional Cash Consideration, (c) all other required payments payable in connection with the transactions contemplated hereby, including the transactions contemplated by Section 7.15, and (d) all fees and expenses associated therewith for which any of Parent or the Merger Subs is responsible. As of the date of this Agreement, the Debt Commitment Letter in constitutes a legal, valid and binding obligation of Parent and the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded Subs in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent terms and, to the Knowledge of Parentits knowledge, each of the other parties thereto, except as enforcement may be limited by enforceable against Parent and the Merger Subs and, to its knowledge, each of the other parties thereto in accordance with its terms subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, the Debt Commitment Letter has not been withdrawn or terminated or amended or modified in any respect. There are no event has occurred whichconditions precedent related to the funding of the Debt Financing, with other than as set forth in the Debt Commitment Letter. There are no agreements, side letters or without notice, lapse arrangements relating to the Debt Financing that could impair the availability of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any Debt Financing other party thereto, of any term of than as expressly set forth in or contemplated by the Debt Commitment Letter. As of the date of this Agreement, Agreement and assuming the satisfaction that each of the conditions set forth in Section 6.1 8.1 and Section 6.2 and 8.2 of this Agreement are satisfied at Closing, neither Parent nor the performance by the Partnership of its obligations under this Agreement, Parent does not Merger Subs have any reason to believe that (a) any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that (b) except to the full amount of extent reduced prior to the Closing Date in accordance with Section 7.18(c) hereof, the Debt Financing will not be available to Parent and the Merger Subs on the Closing Date. The only conditions precedent Parent and the Merger Subs have fully paid (or caused to be fully paid) any and all commitment fees or other contingencies related to the obligations of the Debt Financing Sources party to fees required by the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters be paid on or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to before the date of this Agreement. For Each of Parent and the avoidance Merger Subs understands and acknowledges that under the terms of doubtthis Agreement, Parent and the Merger Subs’ obligations hereunder are not in no event shall any way contingent upon or otherwise subject to Parent’s or the receipt or availability Merger Subs’ consummation of any funds or financing by or to Parentarrangements, Merger Sub or any Affiliate of Parent or the Merger Sub be a condition Subs’ obtaining of any financing or the availability, grant, provision or extension of any financing to any obligations of Parent or the Sponsor Entities hereunderMerger Subs.
Appears in 2 contracts
Samples: Merger Agreement (Albertsons Companies, LLC), Merger Agreement (Rite Aid Corp)
Debt Financing. (a) Parent has delivered will use its reasonable best efforts to the Partnership a true arrange and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which obtain the Debt Financing Sources party thereto have committed at Closing, including using its reasonable best efforts to provide (i) maintain in effect the Debt Commitment Letter, (ii) comply in all material respects with its obligations under the Debt Commitment Letter, (iii) negotiate definitive agreements with respect to Merger Sub, subject to the Debt Financing contemplated by the Debt Commitment Letter on the terms and conditions contained therein, debt financing in (iv) satisfy on a timely basis all conditions to the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount initial funding of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, at Closing applicable to Parent or its Affiliates in the Debt Commitment Letter and such definitive agreements, in each case, that are within its control, (v) enforces its rights under the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to (vi) consummate at Closing the Debt Financing contemplated by the Debt Commitment Letter.
(b) If any portion of the Debt Financing contemplated by the Debt Commitment Letter becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter for any reason other than as failure of the conditions in Article VI to be satisfied, Parent will use reasonable best efforts to obtain (i) alternative financing for any such portion from alternative sources on terms not materially less favorable than those set forth in the Debt Commitment Letter provided and (ii) one or more new or amended Debt Commitment Letters and new or amended definitive agreements with respect to such alternative financing. Parent will promptly provide the Company Parties with an executed copy of any new or amended Debt Commitment Letter and a redacted (solely as to fees and other economic terms and any flex provisions) copy of any fee letter in connection therewith. If any new or amended Debt Commitment Letters are obtained, (i) any reference in this Agreement to the Partnership pursuant “Debt Commitment Letter” will be deemed to include such new or amended Debt Commitment Letters to the extent still then in effect (together with any accompanying fee letter), (ii) any reference in this Section 4.6. Assuming Agreement to the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the “Debt Financing, when funded in accordance with ” will mean the debt financing contemplated by the Debt Commitment Letter, together with cash on hand of Parent Letters as modified pursuant to the foregoing and its Subsidiaries, (iii) any reference in this Agreement to the “Lenders” will provide Parent and Merger Sub with sources of immediately available funds be deemed to include the lender parties to such new or amended Debt Commitment Letters to the extent still then in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactionseffect.
(bc) The Debt Commitment Letter is Parent will (i) keep the Company Parties informed following written demand in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each reasonable detail of the other parties thereto, except as enforcement may be limited by and subject status of its efforts to obtain the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent Debt Financing or any alternative financing pursuant to Section 5.22(b)) and (ii) promptly provide the Company Parties with copies of its Subsidiaries orall executed amendments, to the Knowledge of Parent, any other party thereto, of any term modifications or replacements of the Debt Commitment LetterLetter or definitive agreements for the Debt Financing entered into prior to Closing. As Parent will promptly notify the Company Parties (A) of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance any breach or default by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to definitive agreements for the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied entered into prior to Closing of which Parent or that the full amount any of its Affiliates becomes aware, (B) of the Debt Financing will not be available on the Closing Date. The only conditions precedent receipt by Parent or any of its Affiliates of any written notice or other contingencies related written communication from any Lender with respect to the obligations of the Debt Financing Sources any breach or default, or any termination or repudiation, in each case, by any party to the Debt Commitment Letter or any definitive agreements for the Debt Financing entered into prior to fund the full amount Closing and (C) if for any reason Parent at any time believes it will not be able to obtain all or any portion of the Debt Financing are those expressly contemplated to be funded at Closing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or any definitive agreements related to the Debt Financing entered into prior to Closing. Notwithstanding any of the foregoing, in no event will Parent be under any obligation to disclose any information pursuant to this Section 5.22 that would waive the protection of the attorney-client or other legal privilege or result in the violation of any applicable confidentiality undertakings; provided, however, that in such case, Parent will, to the extent permitted by applicable requirements of Law and/or such applicable confidentiality undertakings, provide notice to the Company Parties that such information is being withheld and a general description of such information.
(d) Parent will use its reasonable best efforts to arrange and obtain at or prior to Closing any consents and/or amendments to that certain Credit, Security and Guaranty Agreement (the “MidCap Credit Agreement”), dated as of May 21, 2021, among CSSE and its subsidiaries party thereto as borrowers, Midcap Financial Trust, in its capacity as administrative agent thereunder, and each of the lenders party thereto, necessary to permit the Debt Financing and the other transactions contemplated hereby (the “MidCap Consent/Amendment”).
(e) If the commitments under the MidCap Credit Agreement become unavailable and/or if Parent is not able to obtain the MidCap Consent/Amendment, Parent will use reasonable best efforts to promptly refinance the MidCap Credit Agreement with replacement financing meeting the applicable requirements set forth in the Debt Commitment Letter. As of the date of this AgreementFinancing (which replacement financing shall, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For for the avoidance of doubt, in no event shall permit the receipt or availability Debt Financing and the other transactions contemplated hereby). Parent will promptly provide the Company Parties with drafts and executed copies of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition definitive agreements relating to any obligations of the Sponsor Entities hereundersuch refinancing.
Appears in 2 contracts
Samples: Merger Agreement (Chicken Soup for the Soul Entertainment, Inc.), Merger Agreement (Redbox Entertainment Inc.)
Debt Financing. (a) Parent has delivered to the Partnership Company a true true, correct and complete copy of the executed Debt Commitment Letter, attached hereto as Exhibit O. As of the date of this Agreement, the Debt Commitment Letter has not been amended or modified in any manner since Parent provided, on or prior to the date of this Agreement, a fully executed debt commitment letter dated as copy of the date hereofDebt Commitment Letter. Neither Parent nor any of its Affiliates has entered into any amendment or modification to the Debt Commitment Letter or any agreement, together side letter or other arrangement with all schedules, exhibits, annexes and term sheets attached thereto, pursuant respect to which the Debt Financing Sources party thereto have committed contemplated by the Debt Commitment Letter among the parties thereto, in each case, that would add any condition precedent to provide to Merger Sub, subject funding of the Debt Financing or otherwise expand or adversely amend or modify any of the conditions precedent to the terms and conditions therein, debt financing in receipt of the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect reduce the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing below an amount necessary (together with the proceeds of the Preferred Stock Issuance) to fund all of the amounts required to be provided by Parent or Merger Sub for the consummation of the Transactions contemplated by this Agreement (including the payment of the Cash Merger Consideration), adversely affect the availability of the Debt Financing or delay or prevent the Closing or make the funding of the Debt Financing less likely to occur. Assuming the satisfaction of the closing conditions set forth in Section 7.1 and Section 7.2 and that the Debt Financing is funded in accordance with the Debt Commitment Letter (including any “market flex” provisions related thereto), the aggregate net proceeds of the Debt Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto) when funded in accordance with the terms of the Debt Commitment Letter”), together with the proceeds of the Preferred Stock Issuance, will be sufficient to consummate the Transactions contemplated hereby, including the payment of the Estimated Cash Merger Consideration on the Closing Date. As of the date of this Agreement, the commitment contained in the Debt Commitment Letter has not been withdrawn, rescinded or repudiated in any respect and no such withdrawal, rescission or repudiation is contemplated. As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the represents a legal, valid, binding and enforceable obligation of Parent and, to the Knowledge knowledge of Parent, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the other parties thereto, conditions set forth in the Debt Commitment Letter and except as enforcement enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium Laws, other similar Laws affecting creditors’ rights and subject general principles of equity affecting the availability of specific performance and other equitable remedies. Parent has fully paid (or caused to be fully paid) any and all commitment fees and other amounts that are due and payable by Parent on or prior to the Bankruptcy and Equity Exceptiondate of this Agreement in connection with the Debt Financing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach or default or breach by on the part of Parent or any of its Subsidiaries or, to the Knowledge knowledge of Parent, any other party thereto, of any term of thereto under the Debt Commitment LetterLetter or that would result in the Debt Financing contemplated thereby to be unavailable or materially delayed. As of the date of this Agreement, assuming Assuming the satisfaction of the conditions set forth in Section 6.1 7.1 and Section 6.2 7.2 and the performance compliance by the Partnership of its obligations under this AgreementCompany with Section 6.8 (other than any failures to comply with Section 6.8 that, individually and in the aggregate, are not material), Parent does not have any has no reason to believe that it or any party to the Debt Commitment Letter Financing Source will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied it or that the full amount of the Debt Financing contemplated by the Debt Commitment Letter will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations funding of the Debt Financing Sources party to contemplated by the Debt Commitment Letter to fund on the full amount of Closing Date that will be included in the related Debt Financing are those expressly Documents shall be the conditions set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than Letter as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to effect on the date of this Agreement. For Notwithstanding anything to the avoidance of doubtcontrary, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be Debt Financing is not a condition precedent to any obligations the consummation of the Sponsor Entities hereundertransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Ani Pharmaceuticals Inc)
Debt Financing. (a) Parent has delivered to the Partnership Company a true true, correct and complete copy of a the fully executed debt commitment letter letter, dated as of the date hereof, executed and delivered by Parent, Xxxxx Fargo Bank, National Association, Xxxxx Fargo Securities, LLC, Bank of America, N.A., and BofA Securities, Inc., together with all schedulesannexes, exhibits, annexes schedules and term sheets attached attachments thereto, pursuant in each case, as amended or otherwise modified only to the extent expressly permitted by this Agreement, and all fee letters associated therewith (the “Fee Letters”) (with, in the case of the Fee Letters, certain economic pricing terms redacted (none of which redacted provisions will adversely affect the availability of, or impose conditions on, the availability of the Debt Financing Sources party thereto have committed at the Closing) (collectively, the “Debt Commitment Letter”)) to provide to Merger SubParent, subject to the terms and conditions therein, debt financing the Debt Financing. As of the date of this Agreement, the Debt Commitment Letter has not been amended or modified and the respective obligations and commitments contained therein have not been withdrawn, terminated or rescinded in any respect. As of the date of this Agreement, no amendment, restatement, withdrawal, termination or other modification of the Commitment Letter is contemplated (except for any modifications or adjustments within the limits of the “market flex” provisions set forth in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Fee Letter”). As of the date of this Agreement, the Debt Commitment Letter Letter, in the form delivered to the Partnership has not been amended or modifiedso delivered, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the a legal, valid, valid and binding and enforceable obligation of Parent Parent, and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement such enforceability may be limited by bankruptcy, insolvency, moratorium, and subject other similar Laws affecting creditors’ rights generally and by general principles of equity. Parent has fully paid any and all commitment fees and other fees in connection with the Debt Commitment Letter that are payable on or prior to the Bankruptcy date of this Agreement. The net cash proceeds of the Debt Financing contemplated by the Debt Commitment Letter will, when added to the portion of the Debt Financing that is available, cash and Equity Exceptioncash equivalents and equity issuances (prior to the Closing Date) of Parent, Holdco, Rooster Merger Sub, Parent Merger Sub and their respective Subsidiaries, be sufficient (a) to consummate the Mergers upon the terms contemplated by this Agreement and to pay all related Expenses associated therewith and (b) to fully satisfy all of the outstanding indebtedness of the Company or any of its Subsidiaries to the extent required to be repaid in connection with the consummation of the Mergers and the other transactions contemplated hereby (the aggregate amount described in this sentence is referred to as the “Required Amount”). As of the date of this Agreement, Parent has no reason to believe that any of the conditions precedent to closing of the Debt Financing will not be satisfied, or that the Debt Financing will not be made available to Parent, in each case, at or prior to the Closing. As of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default, event of default or breach by on the part of Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required or that would permit the financial institutions party thereto to be satisfied by itterminate, that the conditions or to not fund the Debt Financing at or prior to the Closing upon satisfaction of all conditions thereto set forth in, the Debt Commitment Letter. Except as set forth in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only Letter, there are no (a) conditions precedent or other contingencies related to the respective obligations of the Debt Financing Sources party to lenders specified in the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in at or prior to the Debt Commitment Letter. As of the date of this AgreementClosing; or (b) contractual contingencies under any agreements, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments relating to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) the Debt Financing to which any of Parent, Holdco, Rooster Merger Sub, Parent Merger Sub or any of their respective Affiliates is a party related to that would permit the Debt Financing other than as expressly contained lenders specified in the Debt Commitment Letter to reduce the total amount of the Debt Financing, or that would materially and delivered adversely affect the availability to Parent of the Partnership Debt Financing at or prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderClosing.
Appears in 2 contracts
Samples: Merger Agreement (Us Ecology, Inc.), Merger Agreement (NRC Group Holdings Corp.)
Debt Financing. (a) Parent has delivered to the Partnership a true Company true, correct and complete copy copies of a fully executed debt commitment letter letter, dated as of the date hereofMay 24, together with 2017 (including all related exhibits, schedules, exhibitsannexes, annexes supplements and term sheets attached thereto, and as amended from time to time after the date hereof in compliance with Section 6.10(b), the “Debt Commitment Letter”) from the lenders party thereto (collectively, the “Committed Lenders”) and the arrangers party thereto (collectively, the “Lead Arrangers”), pursuant to which the Debt Financing Sources party thereto Committed Lenders have committed to provide to Merger Subcommitted, subject to the terms and conditions set forth therein, debt financing to provide to CF Corp the Debt Financing in cash in the aggregate amount set forth therein (in the “Debt Financing”) with only Commitment Letter. A true, correct and complete copy of the fee amounts letter related to the Debt Commitment Letter has been provided to the Company, except that the existence and/or amount of fees, flex provisions, pricing terms, pricing caps and other customary commercially sensitive numbers specified therein have been redacted; provided, however, that in no event shall any terms redacted, none of which redacted provisions could affect relating to conditions precedent to the conditionality, enforceability, availability or aggregate principal amount funding of the Debt Financing be redacted (such fee letter, the “Debt Commitment Fee Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the a legal, valid, valid and binding and enforceable obligation of Parent CF Corp and, to the Knowledge of ParentCF Corp, each of the other parties party thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exceptionenforceable in accordance with its terms. As of the date hereof, none of this Agreementthe commitments contained in the Debt Commitment Letter have been withdrawn, terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such withdrawal, termination, repudiation, rescission, amendment, supplement or modification is contemplated, except as permitted by Section 6.10 hereof.
(c) As of the date hereof, neither CF Corp nor, to the Knowledge of CF Corp, any other counterparty thereto, has committed any breach of any of its covenants or other obligations set forth in, or is in default under, the Debt Commitment Letter, and to the Knowledge of CF Corp, no event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected likely to (i) constitute or result in a breach or default or breach by Parent or any of its Subsidiaries or, to on the Knowledge of Parent, any other party thereto, part of any term of Person under the Debt Commitment Letter. As , (ii) constitute or result in a failure to satisfy a condition precedent to or other contingency to be satisfied set forth in the Debt Commitment Letter, (iii) make any of the date of this Agreement, assuming statements set forth in the Debt Commitment Letter inaccurate in any material respect or (iv) subject to the satisfaction (or waiver by CF Corp, Parent and Merger Sub) of the conditions set forth in Section 6.1 7.01 and Section 6.2 and 7.02, otherwise result in any portion of the performance by Debt Financing not being available.
(d) As of the Partnership date hereof, none of its obligations under this AgreementCF Corp, Parent does not have or Merger Sub has received any reason to believe that notice or other communication from any party to the Debt Commitment Letter with respect to (i) any actual or threatened breach or default on the part of CF Corp or any other party to the Debt Commitment Letter, (ii) any actual or threatened failure to satisfy any condition precedent to the availability of the Debt Financing pursuant to the terms of the Debt Commitment Letter or (iii) any intention of such party to terminate the Debt Commitment Letter or to not provide all or any portion of amount committed to be provided by such party pursuant to the terms of the Debt Financing. As of the date hereof, subject to the satisfaction (or waiver by CF Corp, Parent and Merger Sub) of the conditions set forth in Section 7.01 and Section 7.02, CF Corp, Parent and Merger Sub (both before and after giving effect to any “market flex” provisions contained in the Debt Commitment Letter): (A) have no reason to believe CF Corp, Parent, Merger Sub or any of their respective Affiliates will not be unable able to satisfy on a timely basis each term and condition to be satisfied by any term of them relating to the closing or funding of the Debt Financing, (B) know of no fact, occurrence, circumstance or condition of that would reasonably be likely to (1) cause the Debt Commitment Letter required to terminate, to be withdrawn, modified, repudiated or rescinded or to be or become ineffective, (2) cause any of the terms or conditions to be satisfied by itCF Corp, that Parent, Merger Sub or any of their respective Affiliates relating to the conditions to closing or funding of any portion of the Debt Financing in not to be met or complied with, or (3) otherwise cause the full amount (or any portion) of the funds contemplated to be available under the Debt Commitment Letter will to not otherwise be satisfied or that the full amount available to CF Corp, Parent and Merger Sub on a timely basis (and in any event as of the Closing) and (C) know of no potential impediment to the funding of any of the payment obligations of CF Corp, Parent or Merger Sub under this Agreement. CF Corp, Parent and/or Merger Sub have fully paid any and all commitment fees or other fees or deposits required by the Debt Financing Commitment Letter to be paid on or before the date hereof, and CF Corp, Parent or Merger Sub will pay when due all other commitment or other fees arising under the Debt Commitment Letter as and when they become payable.
(e) There are no, and there will not be available on the Closing Date. The only any, conditions precedent or other contingencies related to the obligations Debt Financing as contemplated by the Debt Commitment Letter other than as expressly set forth in the Debt Commitment Letter or the Fee Letter (the “Debt Disclosed Conditions”). Other than the Debt Disclosed Conditions, no Debt Financing Source nor any other Person has any right to impose, and none of the Equity Providers, CF Corp, Parent, Merger Sub, the Company or any Subsidiary obligor have any obligation to accept, any condition precedent to any funding of the Debt Financing Sources party nor any reduction to the aggregate amount available under the Debt Commitment Letter (nor any term or condition which would have the effect of reducing the aggregate amount available under the Debt Commitment Letter). Other than the Debt Commitment Letter and the Fee Letter, neither CF Corp nor any of its Affiliates has entered into any agreement, side letter or other contractual arrangement (in each case, whether oral or written), relating to fund the Debt Financing, other than (i) as set forth in the Debt Commitment Letters and the Fee Letter, (ii) customary administrative agent engagement letters or non-disclosure agreements which do not impact the conditionality of the Debt Financing or (iii) those that would not be reasonably expected to adversely affect the availability of any portion of the Debt Financing and which do not impact the conditionality of the Debt Financing. Other than as set forth in the Debt Commitment Letter or the Fee Letter, there are no conditions precedent relating to the funding of the full amount of the Debt Financing are those expressly set forth in that would reasonably be likely to, (i) impair the validity of the Debt Commitment Letter. As , (ii) reduce the aggregate amount of the date Debt Financing, (iii) prevent or delay the consummation of this Agreementthe transactions contemplated hereby, there are no side letters (iv) cause the Debt Commitment Letter to be ineffective, or other Contracts(v) otherwise result in the Debt Financing not being available on a timely basis in order to consummate the transactions contemplated hereby.
(f) The aggregate proceeds from the Debt Financing constitute all of the financing required to (i) repay, arrangements redeem and/or refinance all outstanding amounts under the Company Existing Indenture and the Company Existing Credit Agreement (assuming all such amounts were required to be repaid or understandings redeemed) and (whether oral or written ii) pay all fees, costs and whether or not legally binding) or commitments expenses to enter into side letters or other Contractsbe paid by CF Corp, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related the Surviving Corporation relating to the Debt Financing other than (clauses (i) and (ii) are collectively referred to herein as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder“Refinancing”).
Appears in 2 contracts
Samples: Merger Agreement (CF Corp), Merger Agreement (Fidelity & Guaranty Life)
Debt Financing. (a) Parent has delivered to the Partnership Company a true true, correct and complete copy of a fully the executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modifiedmodified in any manner since Parent provided, no such on or prior to the date of this Agreement, a fully executed copy of the Debt Commitment Letter. Neither Parent nor any of its Affiliates has entered into any amendment or modification is contemplated and none of to the obligations and commitments contained in such Debt Commitment Letter have or any agreement, side letter or other arrangement with respect to the Debt Financing contemplated by the Debt Commitment Letter among the parties thereto, in each case, that would add any condition precedent to funding of the Debt Financing or otherwise expand or adversely amend or modify any of the conditions precedent to the receipt of the Debt Financing, reduce the amount of the Debt Financing below an amount necessary (together with cash and cash equivalents of Parent) to fund all of the amounts required to be provided by Parent or Merger Subsidiary for the consummation of the Transactions (including the payment of the Closing Cash Consideration, but excluding payment of any amounts pursuant to the CVR Agreement), adversely affect the availability of the Debt Financing or delay or prevent the Closing or make the funding of the Debt Financing less likely to occur. As of the date of this Agreement, the commitment contained in the Debt Commitment Letter has not been withdrawn, terminated rescinded or rescinded repudiated in any respect and no such withdrawal, termination rescission or rescission repudiation is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy As of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13date of this Agreement, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the represents a legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the other parties thereto, conditions set forth in the Debt Commitment Letter and except as enforcement enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization or moratorium Laws, other similar Laws affecting creditors’ rights and subject general principles of equity affecting the availability of specific performance and other equitable remedies. Parent has fully paid (or caused to be fully paid) any and all commitment fees and other amounts that are due and payable by Parent on or prior to the Bankruptcy and Equity Exceptiondate of this Agreement in connection with the Debt Financing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach or default or breach by on the part of Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of thereto under the Debt Commitment LetterLetter or that would result in the Debt Financing contemplated thereby to be unavailable or materially delayed. As of the date of this Agreement, assuming Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance compliance by the Partnership of its obligations under this AgreementCompany with Section 5.18 (other than any failures to comply with Section 5.18 that, individually and in the aggregate, are not material), Parent does not have any has no reason to believe that it or any party to the Debt Commitment Letter Financing Source will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied it or that the full amount of the Debt Financing contemplated by the Debt Commitment Letter will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations funding of the Debt Financing Sources party to contemplated by the Debt Commitment Letter to fund on the full amount of Closing Date that will be included in the related Debt Financing are those expressly Documents shall be the conditions set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than Letter as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to effect on the date of this Agreement. For Notwithstanding anything to the avoidance of doubtcontrary contained herein, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be Debt Financing is not a condition precedent to any obligations the consummation of the Sponsor Entities hereundertransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Ani Pharmaceuticals Inc), Merger Agreement (Alimera Sciences Inc)
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts to the Partnership a true take (and shall cause Merger Sub to take), or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Parent Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to on or before the Closing on the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth described in the Debt Commitment Letter provided (as amended, supplemented, modified, replaced, terminated, reduced or waived in accordance with Section 5.21(b)), including using reasonable best efforts to:
(i) cause Merger Sub to comply with its obligations under and maintain in effect the Debt Commitment Letter, and, once entered into, the Parent Debt Financing Agreements with respect thereto;
(ii) negotiate Parent Debt Financing Agreements with respect to the Partnership pursuant Parent Debt Financing on terms and conditions consistent in all material respects with those contained in the Debt Commitment Letter (including, as necessary, the flex or similar provisions contained in any related fee letter), or on other terms no less favorable (taken as a whole) to this Section 4.6. Assuming Parent;
(iii) cause Merger Sub to satisfy on a timely basis all conditions applicable to Merger Sub in the accuracy Debt Commitment Letter and any Parent Debt Financing Agreements with respect thereto; and
(iv) in the event of the representations and warranties set forth in Section 3.2(a) and compliance a failure to fund by the Partnership with Sections 5.2(b)(i) and 5.13, the Parent Debt Financing, when funded Financing Sources in accordance with the Debt Commitment LetterLetter that prevents, together with cash on hand of Parent and its Subsidiariesimpedes or materially delays the Closing, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and cause Merger Sub to pay enforce its rights under the aggregate Merger Consideration Debt Commitment Letter and any other amount required to be paid by Parent or Merger Sub Debt Financing Agreements with respect thereto (including through litigation pursued in connection with the consummation of the Transactionsgood faith).
(b) The Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Debt Commitment Letter is in full force and effect and is without the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each prior written consent of the other parties theretoCompany (such consent not to be unreasonably withheld, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreementconditioned or delayed) if such amendment, no event has occurred whichsupplement, with modification, replacement, termination, reduction or without notice, lapse of time or both, waiver would or would reasonably be expected to constitute a default (i) materially delay or breach prevent the Closing, (ii) reduce the aggregate amount of the Parent Debt Financing to an amount which is insufficient for Parent to fund the Parent Required Amount upon the terms contemplated by Parent this Agreement on the Closing Date, (iii) impose new or additional conditions or otherwise expand, amend or modify any of its Subsidiaries or, the conditions to the Knowledge receipt of Parentthe Parent Debt Financing, in each case, in a manner that could adversely impact in any material respect the ability of Merger Sub to obtain the Parent Debt Financing or (iv) adversely impact in any material respect the ability of Merger Sub to enforce its rights against the other party thereto, of any term of parties to the Debt Commitment Letter. As ; it being understood that notwithstanding the foregoing Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement. Upon any amendment, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreementsupplement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term modification, replacement, termination, reduction or condition waiver of the Debt Commitment Letter required to be satisfied by itin accordance with this Section 5.21(b), that the conditions Parent shall deliver a copy thereof to the Debt Financing in the Debt Company (such commitment letter, a “Replacement Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related Letter”) and (i) references herein to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the “Debt Commitment Letter. As of the date of ” shall include such documents as amended, supplemented, modified, replaced, terminated, reduced or waived in compliance with this Agreement, there are no side letters or other Contracts, arrangements or understandings Section 5.21(b) and (whether oral or written and whether or not legally bindingii) or commitments references to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.the
Appears in 2 contracts
Samples: Merger Agreement (Wyndham Hotels & Resorts, Inc.), Merger Agreement (Wyndham Worldwide Corp)
Debt Financing. (a) Assuming (i) the Debt Financing is funded in accordance with the Debt Commitment Letter, (ii) the contributions, investments and other transactions contemplated by the Rollover Agreement are consummated in accordance with the terms of the Rollover Agreement, and (iii) the satisfaction of the conditions to the obligation of Parent and Merger Sub to consummate the Merger as set forth in Section 8.01 and Section 8.02 or the waiver of such conditions, Parent and Merger Sub will have available to them, as of or immediately after the Effective Time, all funds necessary for the payment to the Paying Agent of the aggregate amount of the Exchange Fund and any other amounts required to be paid in connection with the consummation of the Merger, the Debt Financing and the other Transactions, and to pay all related Expenses.
(b) Parent has delivered to the Partnership a true Company true, correct and complete copy copies of a fully an executed debt commitment letter letter, dated as of June 5, 2015, between Merger Sub and China Merchants Bank Co., Ltd., New York Branch (as may be amended, restated, replaced, supplemented, modified and substituted pursuant to Section 7.14, the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto“Debt Commitment Letter”), pursuant to which which, the Debt Financing Sources party thereto have committed agreed to provide to Merger Subthe financing in the aggregate amount set forth in such Debt Commitment Letter (the “Debt Financing”), subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none proceeds of which redacted provisions could affect shall be used to finance the conditionality, enforceability, availability or aggregate principal amount consummation of the Debt Financing Merger and the other Transactions and (ii) the “Rollover Agreement. As of the date of this Agreement, the Debt Commitment Letter”), in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent, Merger Sub and the other parties thereto. As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of contemplated, the obligations and commitments contained in such the Debt Commitment Letter have not been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission restriction is contemplated. Neither Parent, Parent or Merger Sub nor has fully paid any of their Affiliates has entered into any agreementand all fees, side letter if any, that are payable on or other arrangement relating prior to the Debt Financing other than as set forth in date hereof under the Debt Commitment Letter provided and will pay when due all other fees arising under the Financing Documents as and when they become due and payable thereunder. Parent has also delivered to the Partnership pursuant to this Section 4.6. Assuming the accuracy Company true, complete and correct copies of the representations and warranties set forth all executed fee letters in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance connection with the Debt Commitment LetterLetter (it being understood that any such fee letter provided to the Company may be Redacted, together with cash on hand of Parent and its Subsidiariessuch fee letters, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions“Fee Letters”).
(bc) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would or would be reasonably be expected to constitute a default or breach by on the part of Parent or any of its Subsidiaries Merger Sub or, to the Knowledge of Parent, any other party parties thereto, of any term of under the Debt Commitment Letter; provided, however, that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties in ARTICLE IV. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 Parent and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does Merger Sub do not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the Debt Financing will not be available to Parent or Merger Sub at the Effective Time; provided, however, that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties in ARTICLE IV, or compliance by the Company with its obligations under this Agreement. The Debt Commitment Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the Debt Financing available to Parent on the terms therein. The parties hereto agree that it shall not be a condition to Closing for Parent or Merger Sub to obtain the Debt Financing or the Alternative Debt Financing.
(d) There are no side letters or other oral or written Contracts related to the funding of the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent to which Parent or any of its Subsidiaries is a party other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those than (i) as expressly set forth in the Debt Commitment Letter. As of , and (ii) customary engagement letters and the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderFee Letters.
Appears in 1 contract
Samples: Merger Agreement (Ho Chi Sing)
Debt Financing. (a) Parent has delivered to the Partnership a true and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject Subject to the terms and conditions thereinof this Agreement, debt financing in Parent will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary to arrange and obtain the Debt Financing on or prior to the Closing Date to the extent necessary to satisfy the obligation to pay the Required Amounts, and will not, without the Company’s prior written consent, amend, modify, replace, terminate or agree to any waiver under the Debt Commitment Letter or Fee Letters if such amendment, modification, replacement, termination or waiver (i) reduces the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal cash amount of the Debt Financing to an amount that, together with other cash and cash equivalents available to Parent and its Affiliates, would be less than an amount that would be required to satisfy the obligation to pay the Required Amounts or (ii) changes the “conditions to obtaining the Debt Financing or adds new or additional conditions precedent to obtaining the Debt Financing, if such change would reasonably be expected to materially delay, prevent or impede the consummation of the transactions contemplated hereby or materially adversely affect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter”). As Letter or any other documentation relating to the Debt Financing, or make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing on the Closing Date) materially less likely to occur on the Closing Date; provided, however, that, notwithstanding the foregoing, Parent may (1) amend or replace the Debt Commitment Letter and any related fee letters to add lenders, arrangers, bookrunners, syndication agents, managers or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, and (2) implement or exercise any “flex” provisions provided in any fee letter related to the Debt Commitment Letter as in effect on the form delivered to date of this Agreement (including the Partnership has not been amended Fee Letters) or as amended, modified, no such amendment or modification is contemplated and none of replaced in accordance with this Section 5.09. In the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has event that new commitment letters are entered into in accordance with any agreementamendment, side letter modification or other arrangement relating to the Debt Financing other than as set forth in replacement of the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming 5.09, (x) such new commitment letters shall be deemed to be a “Debt Commitment Letter” for all purposes of this Agreement and references to the accuracy of “Debt Financing” herein shall include and mean the representations financing contemplated by the Debt Commitment Letters as so amended, modified or replaced, as applicable and warranties set forth (y) Parent shall promptly deliver to the Company copies (which may be redacted in the manner described in Section 3.2(a4.05) of such new commitment letters and compliance by any related fee letters. Parent shall furnish to the Partnership with Sections 5.2(b)(iCompany a copy (which may be redacted in the manner described in Section 4.05) and 5.13of any amendment, modification, waiver or consent of or under the Debt FinancingCommitment Letter or the Fee Letters promptly following execution thereof.
(b) Parent will use its reasonable best efforts, when funded to the extent necessary to satisfy its obligation to pay the Required Amounts, to (i) maintain in accordance with effect the Debt Commitment Letter, together with cash (ii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on hand a timely basis all conditions to the Debt Financing that are within Parent’s control, including the payment of Parent and its Subsidiariesany commitment, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount arrangement, engagement or placement fees required to be paid by Parent or Merger Sub in connection as a condition to closing, (iii) negotiate and enter into and deliver definitive agreements with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, respect to the Knowledge of ParentDebt Financing, each of and (iv) in the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of that the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this AgreementArticle VII have been satisfied or waived or, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by itupon funding, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise would be satisfied or that the full waived, draw an amount of the Debt Financing will not be which, together with other cash and cash equivalents available on to Parent and its Affiliates, is sufficient to enable Parent to satisfy the Closing Date. The only conditions precedent or other contingencies related obligation to pay the Required Amounts.
(c) In addition to the obligations requirements of Section 5.09(a) hereof, upon the request of the Company, Parent will keep the Company reasonably informed on a reasonably current basis of the status of Parent’s efforts to obtain the Debt Financing.
(d) From and after the date hereof and prior to the Closing, the Company shall and shall cause its Subsidiaries (and shall use reasonable best efforts to cause its and its Subsidiaries’ officers, directors, employees, agents, advisors, and other representatives) to provide such assistance with the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount as is customary with financings of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in type contemplated by the Debt Commitment Letter and delivered reasonably requested by Parent, including using reasonable best efforts to (i) provide to Parent and its Affiliates and their Debt Financing Sources as promptly as practicable all financial information relating to the Partnership prior to the date Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may - 49 - be reasonably requested by Parent and customary in connection with similar types of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.financings,
Appears in 1 contract
Debt Financing. (a) Parent Buyer has delivered to the Partnership Company a true true, complete and complete fully executed copy of a fully executed debt commitment letter dated as of the date hereof(including all related exhibits, together with all schedules, exhibitsannexes, annexes supplements and term sheets attached thereto, pursuant and as amended from time to which time after the date hereof in compliance with Section 6.9, the “Debt Commitment Letter”) from the Debt Financing Sources party thereto have committed identified therein confirming their respective commitments to provide to Merger Sub, subject to Buyer or the terms and conditions therein, Debt Financing Subsidiary with debt financing in connection with the aggregate transactions contemplated hereby in the amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, valid and binding and enforceable obligation of Parent Buyer or the Debt Financing Subsidiary, as the case may be, and, to the Knowledge knowledge of ParentBuyer, each of the other parties thereto, except enforceable against Buyer or the Debt Financing Subsidiary, as enforcement the case may be limited by and be, and, to the knowledge of Buyer, the other parties thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). As of the Bankruptcy date hereof, the Debt Commitment Letter has not been amended, restated or otherwise modified or waived in any respect, and Equity Exceptionthe respective commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or otherwise modified in any respect. All commitment fees and other fees required to be paid under the Debt Commitment Letter on or prior to the date hereof have been paid in full. The Debt Financing Subsidiary is a wholly-owned Subsidiary of Buyer.
(c) As of the date of this Agreement, neither Buyer nor, to the knowledge of Buyer, the other parties thereto have breached any of the covenants or other obligations set forth in, or is in default under, the Debt Commitment Letter, and to the knowledge of Buyer no event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected likely to (i) constitute or result in a breach or default or breach by Parent on the part of Buyer or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable or (ii) constitute or result in a failure by Buyer or the other parties thereto to satisfy on a timely basis any term condition precedent to or condition of the Debt Commitment Letter required other contingency to be satisfied by itBuyer or the other parties thereto set forth in the Debt Commitment Letter.
(d) There are no conditions precedent or similar contingencies directly or indirectly related to the funding of the full amount of the Debt Financing other than as expressly set forth in the Debt Commitment Letter. Other than the Debt Commitment Letter, there are no other contracts, arrangements or understandings, whether oral or written, to which the Buyer or any Affiliate thereof is a party directly or indirectly related to the Debt Financing (except for (i) a customary fee letter, a true, complete and fully executed copy of which has been provided to the Company, with only the fee amounts, “market flex”, pricing terms and pricing caps and other commercially sensitive terms redacted, which redacted terms do not impose any additional conditions or otherwise impact the conditionality of the Debt Financing or (ii) those that would not be reasonably expected to adversely affect the availability or amount of the Debt Financing and do not impose any additional conditions or otherwise impact the conditionality of the Debt Financing). As of the date hereof, Buyer has no reason to believe that any of the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available to Buyer (directly or through the Debt Financing Subsidiary) on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Debt Financing. (a) Each of Parent has delivered and Merger Sub shall use its best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary to arrange the Debt Financing in a timely manner including to (i) maintain in effect the Debt Commitment Letter, (ii) satisfy, or cause its Representatives to satisfy, on a timely basis all conditions in the Debt Commitment Letter that are within their respective control, other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to comply with its obligations under this Agreement) and (iii) assuming all conditions precedent in the Debt Commitment Letter have been satisfied, subject to the Partnership requirements of Section 2.02, draw upon and consummate the Debt Financing at or prior to the Closing.
(b) If Parent or Merger Sub becomes aware that any portion of the Debt Financing has become unavailable on the terms and conditions contemplated in the Debt Commitment Letter, (A) Parent shall promptly so notify the Company, and (B) each of Parent and Merger Sub shall use its commercially reasonable efforts to arrange to obtain alternative debt financing from the same or alternate sources, as promptly as practicable following the occurrence of such event, on terms and conditions no less favorable, in the aggregate, to Parent and Merger Sub, on the one hand, and the Company, on the other hand, than those contained in the Debt Commitment Letter (as determined in the reasonable judgment of Parent), in an amount sufficient (assuming the contributions contemplated by the Rollover Agreement are made, and the Rollover Shares are cancelled without payment of consideration, in accordance with the terms of the Rollover Agreement) to consummate the Merger and other Transactions (the “Alternative Debt Financing”), and to enter into new definitive agreements with respect to such Alternative Debt Financing (the “Alternative Debt Financing Documents”) and Parent shall deliver to the Company as promptly as practicable (and no later than ten (10) Business Days) after such execution, a true and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the each such Alternative Debt Financing Sources party thereto have committed Document (except for customary engagement letters and with respect to provide Fee Letters, Redacted copies thereof). Any reference in this Agreement to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (A) the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect ” shall mean the conditionality, enforceability, availability or aggregate principal amount of debt financing contemplated by the Debt Financing Commitment Letter as amended, restated, supplemented, replaced, substituted or modified pursuant to this Section 7.14(b) and Section 7.14(c) below, (B) any reference in this Agreement to the “Debt Commitment Letter”). As of the date of this Agreement, ” shall be deemed to include the Debt Commitment Letter in the form delivered to the Partnership has not been amended extent so amended, restated, supplemented, replaced, substituted or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such modified (including any Alternative Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating Financing Documents to the Debt Financing other than as set forth extent then in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(aeffect) and compliance by the Partnership with Sections 5.2(b)(i(C) and 5.13, the Debt Financing, when funded any reference in accordance with the Debt Commitment this Agreement to “Fee Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub ” shall be deemed to pay the aggregate Merger Consideration and include any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Fee Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party relating to the Debt Commitment Letter to fund the full amount of the extent so amended, restated, supplemented, replaced, substituted or modified (including in connection with any Alternative Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related Documents to the Debt Financing other than as expressly contained extent then in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereundereffect).
Appears in 1 contract
Samples: Merger Agreement (Ho Chi Sing)
Debt Financing. (a) Parent The Company has delivered to the Partnership Acquiror a true true, complete and complete correct copy of a fully the executed debt commitment letter letter, dated as of August 16, 2021 (including all exhibits, schedules and annexes thereto, and as amended, restated, supplemented, modified, assigned, waived or replaced from time to time after the date hereofhereof in compliance with Section 8.5, together with all schedulesthe “Debt Commitment Letter”), exhibitsfrom Barclays Bank PLC, annexes Xxxxxxx Xxxxx Bank USA, BofA Securities, Inc., Credit Suisse AG, Credit Suisse Loan Funding LLC, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc. and term sheets attached theretoMizuho Bank, Ltd. (collectively, the “Lenders”), pursuant to which the Debt Financing Sources party thereto Lenders have committed to provide to Merger Subcommitted, subject to the terms and conditions set forth therein, to provide to Syniverse Holdings, Inc. (the “Company Debt Financing Subsidiary”) debt financing in the aggregate amount amounts set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreementhereof, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter therein have not been terminated, reduced, rescinded or withdrawn, terminated or rescinded in any respect and no such withdrawaltermination, termination reduction, rescission or rescission withdrawal thereof is contemplated. Neither Parentcontemplated by the Company Debt Financing Subsidiary or, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing Knowledge of the Company, any other than as set forth party thereto; provided that the existence or exercise of “market flex” provisions contained in the fee letter referenced in the Debt Commitment Letter provided (the “Fee Letter”), a redacted copy of which the Company has delivered to the Partnership pursuant to this Section 4.6. Assuming the accuracy Acquiror, shall not constitute an amendment, restatement, supplement, modification, assignment, waiver or replacement of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation . As of the Transactions.
(b) The date hereof, the Debt Commitment Letter is in full force and effect and is constitutes the legal, valid, valid and binding and enforceable obligation obligations of Parent the Company Debt Financing Subsidiary and, to the Knowledge of Parentthe Company, each of the other parties thereto, in each case, except as enforcement to the extent that enforceability may be limited by and subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other Laws affecting the Bankruptcy and Equity Exceptionenforcement of creditors’ rights generally. As of the date hereof, there are no written agreements, side letters, understandings, contracts or arrangements of this Agreementany kind relating to the Debt Financing (other than the Debt Commitment Letter and the Fee Letter) among the parties thereto. As of the date hereof, the Debt Financing is subject to no conditions precedent or other contractual contingencies, other than those expressly set forth in the Debt Commitment Letter and the Fee Letter. As of the date hereof, to the Knowledge of the Company, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent the Company Debt Financing Subsidiary or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations thereto under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.the
Appears in 1 contract
Debt Financing. (a) Parent has delivered to the Partnership Company a true and complete copy of a fully (i) an executed debt commitment letter (together with all annexes thereto) and fee letter (with confidential fee terms redacted), each dated as of the date hereof, together with all schedulesfrom Xxxxx Fargo Foothill, exhibitsLLC and Xxxxx Fargo Securities, annexes and term sheets attached theretoLLC (the “Lenders”), pursuant to which Parent (collectively, the Debt Financing Sources party thereto have committed “Commitment Letter”) to provide to Merger Subprovide, subject to the terms and conditions therein, debt financing in the aggregate amount amounts set forth therein (the “Debt Financing”).
(b) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, hereof:
(i) the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments commitment contained in such Debt the Commitment Letter have has not been withdrawn, terminated withdrawn or rescinded in any respect respect;
(ii) Parent has fully paid any and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter all commitment fees or other arrangement relating to fees required by the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy be paid as of the representations and warranties set forth in Section 3.2(adate hereof;
(iii) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub form so delivered to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with Company on the consummation of the Transactions.
(b) The Debt Commitment Letter date hereof, is in full force and effect and is the constitutes a legal, valid, valid and binding and enforceable obligation of Parent and, to the Knowledge knowledge of Parent, each the Lenders for so long as it remains in full force and effect;
(iv) other than as set forth in or contemplated by the Commitment Letter, there are no (A) conditions precedent, “flex” provisions, contingencies or other substantive provisions (other than provisions related solely to fees) related to the funding of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As full amount of the date Debt Financing, or (B) agreements, side letters, arrangements or understandings that might (1) impair the validity of this Agreementthe Commitment Letter, (2) reduce the aggregate amount of the Debt Financing, (3) delay or prevent the Closing or (4) modify the terms of the Debt Financing in a manner adverse to Parent;
(v) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by on the part of Parent or any of its Subsidiaries Merger Sub or, to the Knowledge knowledge of Parent, any other party thereto, of the Lender under any term or condition of the Debt Commitment Letter. As ; and
(vi) assuming the accuracy of the date of this AgreementCompany’s representations and warranties contained herein, assuming and the satisfaction making of the conditions set forth Company Cash Deposit as provided in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement2.2(a), neither Parent does not have nor Merger Sub has any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available to Parent or Merger Sub on the Closing Date. The only conditions precedent or other contingencies related to date of the obligations Closing.
(c) Assuming a Financing Election is not duly made in accordance with Section 5.15, the aggregate net proceeds of the Debt Financing Sources party to contemplated by the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As , will, when taken together with the Company Cash Deposit and Parent’s other financial resources, including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent, provide Parent on the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments Closing Date with funds sufficient to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which enable Parent, Merger Sub or any and/or the Surviving Corporation to consummate the Merger upon the terms contemplated by this Agreement, to make all payments contemplated by this Agreement in connection with the Merger (including payment of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date all amounts payable under Article II of this Agreement. For the avoidance of doubt, Agreement in no event shall the receipt connection with or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be as a condition to any obligations result of the Sponsor Entities hereunderMerger) and to pay all fees and expenses associated therewith.
Appears in 1 contract
Debt Financing. (a) Parent The Buyer has delivered to the Partnership Seller a true and complete copy of a fully executed debt commitment letter dated (as amended, amended and restated, supplemented or otherwise modified with the prior written consent of the date hereofSeller or as permitted or required by Section 6.8, together including with all schedulesrespect to any Alternate Financing, exhibits, annexes and term sheets attached thereto, pursuant to which the “Debt Financing Sources party thereto have committed Commitment Letter”) from the Lenders to provide to Merger Sub, subject to the terms and conditions therein, Buyer with the debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only and the fee amounts letter between the Buyer and other customary commercially sensitive terms redactedthe Lenders (the “Fee Letter”), none of which Fee Letter may be redacted provisions could affect in a manner reasonably satisfactory to the conditionality, enforceability, availability or aggregate principal amount Lenders. The proceeds of the Debt Financing (will be used to pay the “Debt Commitment Letter”). As Final Purchase Price and the fees and expenses of the date of this Agreement, Buyer relating to the transactions contemplated by the Transaction Documents. The Debt Commitment Letter in the form delivered so provided is in full force and effect as of the date hereof and is a valid, legal, binding and enforceable obligation of the Buyer, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting creditors’ rights generally and by general principles of equity (whether enforcement is sought at law or in equity), and to the Partnership Knowledge of the Buyer, the other parties thereto. In addition, (i) the Debt Commitment Letter has not been amended amended, restated or modifiedotherwise modified or waived except, no such amendment or modification is contemplated and none in each case, with the prior written consent of the obligations and Seller or as permitted or required by Section 6.8, (ii) the financing commitments contained in such the Debt Commitment Letter have not been withdrawn, withdrawn or terminated or rescinded in any respect and no such withdrawal, withdrawal or termination is contemplated by the Buyer or rescission is contemplated. Neither Parent, Merger Sub nor any of their its Affiliates has entered into or, to the Knowledge of the Buyer as of the date hereof, any agreementother party thereto, (iii) as of the date hereof, there are no side letter letters or other arrangement relating written understandings to which Buyer or any of its Affiliates is party that interpret the Debt Commitment Letter or contain or impose additional obligations or conditions upon the Buyer or any of its Affiliates, that would affect the availability of the Debt Financing other than in accordance with the terms of the Debt Commitment Letter and (iv) as of the date hereof, none of the Buyer or its Affiliates is in breach of any of the terms or conditions set forth in the Debt Commitment Letter provided and, subject to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties of the Seller set forth in Section 3.2(aArticle 4, no event has occurred that, with or without notice, lapse of time or both, could reasonably be expected to constitute a breach or default on the part of the Buyer or any of its Affiliates or, to the Knowledge of the Buyer, any other party thereto under any term or condition of the Debt Commitment Letter. The Buyer has fully paid any and all commitment fees and other fees in connection with the Debt Commitment Letter that are payable in accordance with the terms of the Debt Commitment Letter.
(b) Subject to the satisfaction of the conditions set forth in Articles 8 and compliance by 9, the Partnership with Sections 5.2(b)(i) and 5.13, Buyer has no reason to believe that any of the conditions to the Debt Financing will not be satisfied on the Closing Date or that the Debt Financing or any portion thereof will otherwise not be available to the Buyer on the Closing Date. The net proceeds from the Debt Financing, when funded in accordance with the Debt Commitment Letter, will, together with cash on hand the proceeds of Parent and its Subsidiariesthe equity committed to be contributed to the Buyer pursuant to the terms of the Equity Commitment Letter, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate aggregate, constitute all of the financing required for the consummation of the Transactions pursuant to the terms of this Agreement and be sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration satisfaction of all of the Buyer’s obligations under the Transaction Documents, including the payment of the Final Purchase Price and any other amount amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, There are no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to (including in the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those Fee Letter), other than as expressly set forth in the Debt Commitment Letter. As of , to the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments Lenders’ obligations to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to fund the Debt Financing other than as expressly contained in on the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Anixter International Inc)
Debt Financing. (a) Parent has delivered to the Partnership a true Company true, correct and complete copy copies of a fully executed debt commitment letter letter, dated as of the date hereofMay 24, together with 2017 (including all related exhibits, schedules, exhibitsannexes, annexes supplements and term sheets attached thereto, and as amended from time to time after the date hereof in compliance with Section 6.10(b), the “Debt Commitment Letter”) from the lenders party thereto (collectively, the “Committed Lenders”) and the arrangers party thereto 45 (collectively, the “Lead Arrangers”), pursuant to which the Debt Financing Sources party thereto Committed Lenders have committed to provide to Merger Subcommitted, subject to the terms and conditions set forth therein, debt financing to provide to CF Corp the Debt Financing in cash in the aggregate amount set forth therein (in the “Debt Financing”) with only Commitment Letter. A true, correct and complete copy of the fee amounts letter related to the Debt Commitment Letter has been provided to the Company, except that the existence and/or amount of fees, flex provisions, pricing terms, pricing caps and other customary commercially sensitive numbers specified therein have been redacted; provided, however, that in no event shall any terms redacted, none of which redacted provisions could affect relating to conditions precedent to the conditionality, enforceability, availability or aggregate principal amount funding of the Debt Financing be redacted (such fee letter, the “Debt Commitment Fee Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the a legal, valid, valid and binding and enforceable obligation of Parent CF Corp and, to the Knowledge of ParentCF Corp, each of the other parties party thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exceptionenforceable in accordance with its terms. As of the date hereof, none of this Agreementthe commitments contained in the Debt Commitment Letter have been withdrawn, terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such withdrawal, termination, repudiation, rescission, amendment, supplement or modification is contemplated, except as permitted by Section 6.10 hereof.
(c) As of the date hereof, neither CF Corp nor, to the Knowledge of CF Corp, any other counterparty thereto, has committed any breach of any of its covenants or other obligations set forth in, or is in default under, the Debt Commitment Letter, and to the Knowledge of CF Corp, no event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected likely to (i) constitute or result in a breach or default or breach by Parent or any of its Subsidiaries or, to on the Knowledge of Parent, any other party thereto, part of any term of Person under the Debt Commitment Letter. As , (ii) constitute or result in a failure to satisfy a condition precedent to or other contingency to be satisfied set forth in the Debt Commitment Letter, (iii) make any of the date of this Agreement, assuming statements set forth in the Debt Commitment Letter inaccurate in any material respect or (iv) subject to the satisfaction (or waiver by CF Corp, Parent and Merger Sub) of the conditions set forth in Section 6.1 7.01 and Section 6.2 and 7.02, otherwise result in any portion of the performance by Debt Financing not being available.
(d) As of the Partnership date hereof, none of its obligations under this AgreementCF Corp, Parent does not have or Merger Sub has received any reason to believe that notice or other communication from any party to the Debt Commitment Letter with respect to (i) any actual or threatened breach or default on the part of CF Corp or any other party to the Debt Commitment Letter, (ii) any actual or threatened failure to satisfy any condition precedent to the availability of the Debt Financing pursuant to the terms of the Debt Commitment Letter or (iii) any intention of such party to terminate the Debt Commitment Letter or to not provide all or any portion of amount committed to be provided by such party pursuant to the terms of the Debt Financing. As of the date hereof, subject to the satisfaction (or waiver by CF Corp, Parent and Merger Sub) of the conditions set forth in Section 7.01 and Section 7.02, CF Corp, Parent and Merger Sub (both before and after giving effect to any “market flex” provisions contained in the Debt Commitment Letter): (A) have no reason to believe CF Corp, Parent, Merger Sub or any of their respective Affiliates will not be unable able to satisfy on a timely basis each term and condition to be satisfied by any term of them relating to the closing or funding of the Debt Financing, (B) know of no fact, occurrence, circumstance or condition of that would reasonably be likely to (1) cause the Debt Commitment Letter required to terminate, to be withdrawn, modified, repudiated or rescinded or to be or become ineffective, (2) cause any of the terms or conditions to be satisfied by itCF Corp, that Parent, Merger Sub or any of their respective Affiliates relating to the conditions to closing or funding of any portion of the Debt Financing in not to be met or complied with, or (3) otherwise cause the full amount (or any portion) of the funds contemplated to be available under the Debt Commitment Letter will to not otherwise be satisfied or that the full amount available to CF Corp, Parent and Merger Sub on a timely basis (and in any event as of the Closing) and (C) know of no potential impediment to the funding of any of the payment obligations of CF Corp, Parent or Merger Sub under this Agreement. CF Corp, Parent and/or Merger Sub have fully paid any and all commitment fees or other fees or deposits required by the Debt Financing Commitment Letter to be paid on or before the date hereof, and CF Corp, Parent or Merger Sub will pay when due all other commitment or other fees arising under the Debt Commitment Letter as and when they become payable.
(e) There are no, and there will not be available on the Closing Date. The only any, conditions precedent or other contingencies related to the obligations Debt Financing as contemplated by the Debt Commitment Letter other than as expressly set forth in the Debt Commitment Letter or the Fee Letter (the “Debt Disclosed Conditions”). Other than the Debt Disclosed Conditions, no Debt Financing Source nor any other Person has any right to impose, and none of the Equity Providers, CF Corp, Parent, Merger Sub, the Company or any Subsidiary obligor have any obligation to accept, any condition precedent to any funding of the Debt Financing Sources party nor any reduction to the aggregate amount available under the Debt Commitment Letter (nor any term or condition which would have the effect of reducing the aggregate amount available under the Debt Commitment Letter). Other than the Debt Commitment Letter and the Fee Letter, neither CF Corp nor any of its Affiliates has entered into any agreement, side letter or other contractual arrangement (in each case, whether oral or written), relating to fund the Debt Financing, other than (i) as set forth in the Debt Commitment Letters and the Fee Letter, (ii) customary administrative agent engagement letters or non-disclosure agreements which do not impact the conditionality of the Debt Financing or (iii) those that would not be reasonably expected to adversely affect the availability of any portion of the Debt Financing and which do not impact the conditionality of the Debt Financing. Other than as set forth in the Debt Commitment Letter or the Fee Letter, there are no conditions precedent relating to the funding of the full amount of the Debt Financing are those expressly set forth in that would reasonably be likely to, (i) impair the validity of the Debt Commitment Letter. As , (ii) reduce the aggregate amount of the date Debt Financing, (iii) prevent or delay the consummation of this Agreementthe transactions contemplated hereby, there are no side letters (iv) cause the Debt Commitment Letter to be ineffective, or other Contracts(v) otherwise result in the Debt Financing not being available on a timely basis in order to consummate the transactions contemplated hereby.
(f) The aggregate proceeds from the Debt Financing constitute all of the financing required to (i) repay, arrangements redeem and/or refinance all outstanding amounts under the Company Existing Indenture and the Company Existing Credit Agreement (assuming all such amounts were required to be repaid or understandings redeemed) and (whether oral or written ii) pay all fees, costs and whether or not legally binding) or commitments expenses to enter into side letters or other Contractsbe paid by CF Corp, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related the Surviving Corporation relating to the Debt Financing other than (clauses (i) and (ii) are collectively referred to herein as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder“Refinancing”).
Appears in 1 contract
Samples: Merger Agreement
Debt Financing. (a) Parent The Company has delivered to provided the Partnership Seller with a true and complete copy of a fully an executed debt commitment letter dated as of the date hereofhereof (the “Debt Commitment Letter”) among Atkore International, together with all schedulesInc., exhibits, annexes an indirect subsidiary of the Company (the “Borrower”) and term sheets attached thereto, the lender party thereto (the “Lender”) pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger SubLender has agreed, subject to the terms and conditions thereinthereof, to provide debt financing in the aggregate amount amounts set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount ). Proceeds of the Debt Financing (will be used, among other things, to fund the “Debt Commitment Letter”). As of Company’s obligations hereunder and to pay related fees and expenses required to be paid by Company in connection with the date of transactions contemplated by this Agreement, including in connection with the Debt Financing, on the Closing Date. The Debt Commitment Letter in the form delivered to the Partnership has not been amended or modifiedmodified prior to the date hereof, and, as of the date hereof, no such amendment or modification is contemplated and none contemplated, except to the extent permitted hereunder; provided, that that the existence or exercise of the obligations and commitments “market flex” provisions contained in such Debt Commitment the Fee Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to shall not be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected deemed to constitute a default modification or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term amendment of the Debt Commitment Letter. As of the date of this Agreementhereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition is in full force and effect, constitutes the legal, valid and binding obligation of the Debt Commitment Letter required to be satisfied by itBorrower and, that the conditions to the Debt Financing knowledge of the Company, of each other party thereto (except as such enforceability may be limited by applicable bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium, receivership or similar Laws relating to or affecting creditors’ rights generally and by general principles of equity (whether considered at law or in equity)) and, as of the Debt Commitment Letter will date hereof, the commitments contained therein have not otherwise be satisfied been withdrawn or that rescinded in any respect, and there are no conditions precedent or other contractual contingencies relating to the funding of the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or proceeds covered thereby other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those than as expressly set forth in the Debt Commitment LetterLetter furnished pursuant to this Section 3.6. As of the date of this Agreementhereof, there are no side letters or other Contracts, contracts or arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the funding of the financing contemplated pursuant to the Debt Financing Commitment Letter other than as expressly contained the fee letter referenced in the Debt Commitment Letter and delivered (the “Fee Letter”) or as otherwise expressly set forth in the Debt Commitment Letter furnished pursuant to this Section 3.6. The Company shall not release or consent to the Partnership prior to termination of the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderLender without the prior written consent of the Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Atkore International Group Inc.)
Debt Financing. (a) Parent has delivered Buyer Parties shall use their respective reasonable best efforts to the Partnership a true take, or cause to be taken, all actions and complete copy of a fully executed debt commitment letter dated as of the date hereofto do, together with or cause to be done, all schedulesthings necessary, exhibits, annexes and term sheets attached thereto, pursuant proper or advisable to which consummate the Debt Financing Sources party thereto have committed to provide to Merger Sub, on the terms and subject to the terms and conditions therein, debt financing described in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiariesincluding (i) maintaining in effect the Debt Commitment Letter until the transactions contemplated by this Agreement are consummated, will provide Parent and Merger Sub with sources of immediately available funds (ii) satisfying all conditions applicable to it in the aggregate sufficient for Parent Debt Commitment Letter, (iii) entering into definitive agreements with respect thereto on the terms and Merger Sub conditions consistent in all material respects with the terms and conditions contemplated by the Debt Commitment Letter (or on terms no less favorable (taken as a whole) to pay the Buyer Parties with respect to conditionality and the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the TransactionsDebt Financing), subject to any amendments or modifications thereto permitted by this Section 8.9, and (iv) enforcing their respective rights under the Debt Letter Commitment in the event of a breach or purported breach thereof.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject amended, restated, supplemented or otherwise modified or superseded (i) to add or replace one or more lenders, (ii) to increase the Bankruptcy and Equity Exception. As amount of the date of this Agreement, no event has occurred which, indebtedness or otherwise replace one or more facilities with one or without notice, lapse of time more new facilities or both, would modify one or would reasonably be expected more facilities to constitute a default replace or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of otherwise modify the Debt Commitment Letter. As of the date of , or (iii) in any manner not prohibited by this AgreementSection 8.9(b), assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreementprovided, Parent does not have any reason to believe that any party to the such new Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that shall not (x) amend the conditions to the Debt Financing in so as to adversely impact the Debt Commitment Letter will not otherwise be satisfied or that ability of Buyer Parties to timely consummate the full amount of the Debt Financing will not be available transactions contemplated hereby on the Closing Date or the likelihood of consummation of the transactions contemplated hereby or to delay or prevent the Closing Date. The only conditions precedent ; (y) reduce the aggregate amount of available Debt Financing below an amount sufficient to 52 consummate the transactions contemplated by this Agreement (unless, in the case of this clause (y), such amount is replaced with one or other contingencies related more new debt facilities pursuant to new debt commitment letters on terms no less favorable in any material respect to the obligations of Buyer Parties than the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly terms set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters (z) materially prevent, delay or other Contracts, arrangements or understandings impair the availability of financing under the Debt Commitment Letter on the Closing Date.
(whether oral or written and whether or not legally bindingc) to which Parent, Merger Sub or If any portion of their Affiliates is a party related to the Debt Financing other than as expressly contained becomes unavailable on the express terms and conditions contemplated in the Debt Commitment Letter Letter, Buyer Parties shall use their respective reasonable best efforts to arrange and delivered obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event.
(d) The Company and the Seller (and their respective representatives, including legal and accounting) shall, and the Seller shall cause the Company to, and the Seller and the Company shall cause the Subsidiaries of the Company to, at Buyer Parties’ sole expense, provide such cooperation as is reasonably necessary in connection with the arrangement of the Debt Financing as may be reasonably requested by Buyer, including: (A) providing Buyer from time to time information regarding the Company Group reasonably requested by the lenders providing the Debt Financing, including, providing reasonable access to such lenders and their advisors to the Partnership prior to officers, properties, senior management, books and records and contracts of the date Company Group at reasonable times and upon reasonable notice, (B) providing reasonable assistance with the preparation and negotiation of, and facilitating the execution and delivery by the appropriate officers of this Agreement. For the Company Group of, loan agreements, pledge and security documents and other customary definitive documents and/or certificates (including a solvency certificate) in connection with the Debt Financing (such documents, collectively, the “Financing Documents”) and making senior management of the Company reasonably available for meetings so long as the foregoing does not unreasonably interfere with the conduct of the Company’s business; provided that such signatures, for the avoidance of doubt, shall not be effective prior to the consummation of the transactions contemplated hereby, (C) providing reasonable assistance with the completion of schedules and other information disclosures reasonably requested by Buyer (including in connection with the Financing Documents), (D) obtaining the Payoff Letters in a form reasonably satisfactory to Buyer and the Debt Financing Sources, (E) as of the Closing Date, taking all corporate actions reasonably requested by Buyer to authorize the consummation of the Debt Financing, (F) facilitating the pledge of the collateral for the Debt Financing Sources, in each case, to the extent the Company Group is not prohibited from doing so under applicable Law; provided that such pledge, for the avoidance of doubt, shall not be effective prior to the consummation of the transactions contemplated hereby; provided, further, that such access shall not unreasonably interfere with the operations of the Company Group, and (G) providing all such other reasonable assistance as necessary in order for Buyer to satisfy the conditions to the consummation of the Debt Financing or in order to satisfy Buyer’s obligations under the Debt Commitment Letter or the Financing Documents; provided, however, that all of the foregoing agreements, documents and/or certificates shall be deemed to have been executed and delivered in favor of Buyer (and the Company Group as owned by Buyer) without any Liability whatsoever of the Seller with respect thereto.
(e) Buyer shall keep the Seller reasonably informed of material developments relating to the Debt Financing and, if reasonably requested in writing by the Seller, on the status of Buyer’s efforts relating thereto. Without limiting the generality of the foregoing, Buyer shall promptly notify the Seller in writing of (i) the receipt of (A) any written notice or (B) other written communication, in each case from any Debt Financing Source with respect to any material breach, material default, termination or repudiation by any party to any of the Debt Commitment Letter or other material agreements related to the Debt Financing, (ii) any material dispute or disagreement between or among parties to any of the Debt Commitment Letter with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Closing and (iii) if at any time for any reason Buyer believes in good faith that it will not be able to timely obtain all or any portion of the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letter; provided, that in no event will the Buyer Parties be under any obligation to disclose any information that is subject to attorney-client or similar privilege. If Buyer shall be required to notify the receipt Seller pursuant to the immediately preceding sentence, as soon as reasonably practicable after the Seller delivers to Buyer a written request, Buyer shall provide any information reasonably requested by the Seller relating to any circumstance referred to in the immediately preceding sentence.
(f) Notwithstanding anything to the contrary in this Agreement, none of the Seller, the Company Group, or availability of their respective officers, directors, employees, accountants, legal counsel and other representatives shall be required to take any funds action that would subject such Person to bear any costs, fees or financing by expenses that will not be reimbursed in accordance with the immediately following sentence or to Parentpay any commitment or other similar fee or make any other payment, Merger Sub or incur any Affiliate other Liability, or provide or agree to provide any indemnity in connection with the Debt Financing or their performance of Parent their respective obligations under this Section 8.9 and any information utilized in connection therewith, in each case, with respect to the Company Group, that is not conditioned on, or Merger Sub be a condition is effective prior to the Closing. Buyer shall (i) promptly upon request by the Company reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company Group in connection with such cooperation (including those of their accountants, consultants, legal counsel, agents and other representatives) and (ii) indemnify and hold harmless the Seller, the Company Group, and their respective Affiliates and representatives from and against any obligations and all Liabilities suffered or incurred by them in connection with the arrangement of the Sponsor Entities hereunderDebt Financing or providing any of the information utilized in connection therewith; in each case, other than to the extent such costs, expenses, Liabilities or other items occurred as a result of the gross negligence, bad faith or willful misconduct of the Company Group.
(g) Nothing in this Section 8.9 or otherwise in this Agreement shall limit or shall be construed as limiting or otherwise modifying the representations and warranties of the Buyer set forth in Section 6.7.
Appears in 1 contract
Debt Financing. (a) Each of Guarantor and Parent has delivered shall use commercially reasonable efforts to the Partnership a true take, or cause to be taken, all actions and complete copy of a fully executed debt commitment letter dated as of the date hereofto do, together with or cause to be done, all schedulesthings necessary, exhibits, annexes proper or advisable to consummate and term sheets attached thereto, pursuant to which obtain the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to on the terms and subject only to the conditions therein, debt financing (including the market “flex” provisions) set forth in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, including using commercially reasonable efforts to (i) maintain in effect and comply with the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modifiedLetter, no such amendment or modification is contemplated (ii) negotiate and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any enter into definitive agreements with respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as on the terms and subject only to the conditions (including the market “flex” provisions) set forth in the Debt Commitment Letter provided (or on other terms subject to the Partnership pursuant following sentence) so that such agreements are in effect on the Closing Date, (iii) satisfy on a timely basis all conditions applicable to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent Debt Commitment Letter that are within their control, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub Sub’s obligations to pay consummate the aggregate Merger Consideration Offer and any other the Merger, draw the Debt Financing in the amount required to be paid by Parent or Merger Sub in connection with consummate the consummation of Transactions on the Transactions.
Closing Date and (bv) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of enforce its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of rights under the Debt Commitment Letter. As Guarantor and Parent shall not, without the prior written consent of the date Company, agree to or permit any termination of this Agreementor amendment, assuming the satisfaction supplement or modification to be made to, or grant any waiver of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreementany provision under, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount portion of the Debt Financing will not be available on (including by increasing the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters fees to be paid or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.original issue discount as
Appears in 1 contract
Debt Financing. (a) Parent has delivered to the Partnership a true Company true, correct and complete copy of a fully executed debt commitment letter dated copies, as of the date hereofof this Agreement, together with all schedulesof executed commitment letters and any fee letters related thereto (together, exhibitsand as the same may be amended as permitted by Section 6.16, annexes the “Debt Commitment Letters”) between TIFSA and term sheets attached thereto, pursuant to which the Debt Financing Sources financial institutions identified therein (including any lenders who become party thereto have committed by joinder, the “Lenders”) to provide to Merger Subprovide, subject to the terms and conditions therein, debt financing to a TIFSA Subsidiary (“Borrower”) in the aggregate amount amounts set forth therein (collectively, as may be modified or replaced in accordance with Section 6.16, the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, (i) the Debt Commitment Letter in the form delivered to the Partnership has Letters have not been amended or modifiedmodified (subject to any flex provisions in any fee letter referred to in the previous sentence), and no such amendment or modification is contemplated (except as expressly provided therein, in connection with the joinder of additional Lenders in connection with the syndication of the commitments therein), and none of (ii) the obligations and commitments contained in such the Debt Commitment Letter Letters have not been withdrawn, terminated modified or rescinded in any respect respect. Parent and/or its Subsidiaries have fully paid (or are, substantially concurrently with the execution and no such withdrawaldelivery hereof, termination or rescission is contemplated. Neither Parent, Merger Sub nor fully paying) any of their Affiliates has entered into any agreement, side letter and all commitment fees or other arrangement relating to fees required by the Debt Financing other than as set forth in terms of the Debt Commitment Letter provided Letters that are payable on or prior to the Partnership pursuant to this Section 4.6date hereof. Assuming the accuracy As of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13date hereof, the Debt Financing, when funded in accordance with the each Debt Commitment LetterLetter is (x) a valid and binding obligation of TIFSA and, together with cash on hand to the knowledge of Parent and its SubsidiariesParent, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation each of the Transactionsother parties thereto and (y) in full force and effect.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any on the part of its Subsidiaries TIFSA or, to the Knowledge knowledge of Parent, any other party parties thereto, of or any term of failure to satisfy a condition precedent, under the Debt Commitment LetterLetters. As of the date of this Agreement, assuming the satisfaction Debt Commitment Letters contain all of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the parties thereunder to make the Debt Financing Sources party available to Borrower on the Debt Commitment Letter terms therein and all of the provisions that would permit the Lenders to fund reduce the full total amount of the Debt Financing are those expressly set forth in the Debt Commitment LetterFinancing. As of the date of this Agreement, other than the Debt Commitment Letters, there are no side letters or other Contractsagreements, Contracts or arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub Parent or any of their its Affiliates is a party related to the Debt Financing other than as expressly contained in funding of the full amount of the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderFinancing.
Appears in 1 contract
Debt Financing. (a) Parent Purchaser has delivered to the Partnership Company a true and complete correct copy of a fully an executed debt commitment letter dated as of addressed to Purchaser from KeyBanc Capital Markets, Inc., KeyBank National Association, SunTrust Bank, SunTrust Xxxxxxxx Xxxxxxxx Inc., Regions Bank and Regions Capital Markets (the date hereof, together with “Committed Lenders”) (including all schedules, exhibits, annexes annexes, schedules and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein together with each executed fee letter (the “Debt FinancingFee Letter”) associated therewith (which may be redacted in a customary manner, including, without limitation, with only respect to fee amounts amounts, post-closing securities demand provisions, economic terms, flex terms and other customary commercially sensitive terms redactedrequired “hold” levels), none of which redacted provisions could affect the conditionalitycollectively, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”, and the financing contemplated thereby, the “Debt Financing”), dated on or before the date hereof, pursuant to which the Committed Lenders have committed, on the terms and subject to the conditions set forth therein, to lend Purchaser the amounts set forth therein for the purpose of financing the transactions contemplated by this Agreement. Purchaser’s cash on hand, together with the aggregate amount of the funding to be provided in the Debt Financing (including after giving effect to all “flex” provisions contained therein), is sufficient to pay all amounts required to be paid by Purchaser hereunder and all related fees and expenses hereunder and under the Debt Financing. As of the date of this Agreementhereof, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and has not been withdrawn or terminated or otherwise amended or modified in any respect, and no such amendment or modification is the pending or contemplated. The Debt Commitment Letter is a legal, valid, valid and binding and enforceable obligation of Parent Purchaser and, to the Knowledge knowledge of ParentPurchaser, each of the other parties thereto, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws from time to time in effect affecting creditors’ rights and subject remedies generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). Purchaser has entered into the Engagement Letter (as defined in the Debt Commitment Letter) contemplated by the last paragraph of Section 2 of the Debt Commitment Letter (the “Note Engagement Letter”) and such Note Engagement Letter is a legal, valid and binding obligation of Purchaser and, to the Bankruptcy knowledge of Purchaser, the other parties thereto, except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or similar laws from time to time in effect affecting creditors’ rights and Equity Exceptionremedies generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). As of Except for the date of this AgreementDebt Commitment Letter and the Note Engagement Letter (and the related fee credit letter), there are no other agreements, side letters, undertakings or arrangements relating to the Debt Financing to which Purchaser is a party. To Purchaser’s knowledge, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any on the part of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations Purchaser under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by itLetter. There are no conditions precedent or other contingencies, that the conditions including any subsequent approval process, related to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that funding of the full amount of the Debt Financing, other than the Financing will Conditions, and the Debt Commitment Letter does not be available on provide that the Closing Date. The only parties thereto may impose additional conditions precedent or other contingencies related contingences to the obligations of the Debt Financing Sources party to such funding. Purchaser has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter to fund be paid by it on or prior to the full amount date hereof. As of the Debt Financing are those expressly date hereof, Purchaser is not aware of any fact or occurrence that, with or without notice, lapse of time or both, would reasonably be expected to (i) make any of the assumptions or any of the statements set forth in the Debt Commitment Letter. As Letter inaccurate in any material respect; (ii) result in any of the date of this Agreement, there are no side letters terms or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained conditions in the Debt Commitment Letter and delivered not being satisfied; (iii) cause the Debt Commitment Letter to be ineffective; or (iv) otherwise result in the Partnership prior Debt Financing not being available on a timely basis in order to consummate the date of transactions contemplated by this Agreement. For None of (x) the avoidance provisions redacted in the Fee Letter, or (y) the provisions of doubtthe Note Engagement Letter (or the related fee credit letter) will limit, prevent, impede or delay the consummation of the Debt Financing in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be manner.
(b) Purchaser confirms that it is not a condition to Closing or any of its other obligations of under this Agreement that Purchaser obtain financing for or in connection with the Sponsor Entities hereundertransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nn Inc)
Debt Financing. (a) Parent has delivered to the Partnership a true Company true, correct and complete copy of a fully executed debt commitment letter dated copies, as of the date hereofof this Agreement, together with all schedulesof executed commitment letters and any fee letters related thereto (together, exhibitsand as the same may be amended as permitted by Section 6.16, annexes the “Debt Commitment Letters”) between TIFSA and term sheets attached thereto, pursuant to which the Debt Financing Sources financial institutions identified therein (including any lenders who become party thereto have committed by joinder, the “Lenders”) to provide to Merger Subprovide, subject to the terms and conditions therein, debt financing to a TIFSA Subsidiary (“Borrower”) in the aggregate amount amounts set forth therein (collectively, as may be modified or replaced in accordance with Section 6.16(a), the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, (i) the Debt Commitment Letter in the form delivered to the Partnership has Letters have not been amended or modifiedmodified (subject to any flex provisions in any fee letter referred to in the previous sentence), and no such amendment or modification is contemplated (except as expressly provided therein, in connection with the joinder of additional Lenders in connection with the syndication of the commitments therein), and none of (ii) the obligations and commitments contained in such the Debt Commitment Letter Letters have not been withdrawn, terminated modified or rescinded in any respect respect. Parent and/or its Subsidiaries have fully paid (or are, substantially concurrently with the execution and no such withdrawaldelivery hereof, termination or rescission is contemplated. Neither Parent, Merger Sub nor fully paying) any of their Affiliates has entered into any agreement, side letter and all commitment fees or other arrangement relating to fees required by the Debt Financing other than as set forth in terms of the Debt Commitment Letter provided Letters that are payable on or prior to the Partnership pursuant to this Section 4.6date hereof. Assuming the accuracy As of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13date hereof, the Debt Financing, when funded in accordance with the each Debt Commitment LetterLetter is (x) a valid and binding obligation of TIFSA and, together with cash on hand to the knowledge of Parent and its SubsidiariesParent, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation each of the Transactionsother parties thereto and (y) in full force and effect.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any on the part of its Subsidiaries TIFSA or, to the Knowledge knowledge of Parent, any other party parties thereto, of or any term of failure to satisfy a condition precedent, under the Debt Commitment LetterLetters. As of the date of this Agreement, assuming the satisfaction Debt Commitment Letters contain all of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the parties thereunder to make the Debt Financing Sources party available to Borrower on the Debt Commitment Letter terms therein and all of the provisions that would permit the Lenders to fund reduce the full total amount of the Debt Financing are those expressly set forth in the Debt Commitment LetterFinancing. As of the date of this Agreement, other than the Debt Commitment Letters, there are no side letters or other Contractsagreements, Contracts or arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub Parent or any of their its Affiliates is a party related to the Debt Financing other than as expressly contained in funding of the full amount of the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderFinancing.
Appears in 1 contract
Debt Financing. (a) Until such time as Parent has delivered duly makes a Financing Election in accordance with Section 5.15, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things commercially necessary, proper or advisable to maintain in effect the Commitment Letter.
(b) From and after the earlier of (i) the date Parent delivers notice to the Partnership a true and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, Company pursuant to which the last two sentences of Section 5.15(a), or (ii) the Financing Election Deadline if Parent does not deliver such a notice and does not duly make a Financing Election under Section 5.15 below, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things commercially necessary, proper or advisable to arrange and obtain the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to on the terms and conditions therein, debt financing described in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash including commercially reasonable efforts to (A) satisfy on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for a timely basis all conditions applicable to Parent and Merger Sub to pay obtaining the aggregate Merger Consideration Debt Financing, (B) enter into definitive agreements with respect to the Debt Financing on terms and conditions (including the “flex” provisions) contained in, or consistent in all material respects with, the Commitment Letter, and (C) consummate the Debt Financing at or prior to the Closing. In addition, Parent shall ensure that the net proceeds of the Debt Financing have been deposited into escrow, or otherwise released to Parent, in accordance with the terms of the definitive agreements relating to the Debt Financing, or will be deposited into escrow, or otherwise released to Parent, in accordance with the terms of the definitive agreements relating to the Debt Financing, by no later than the earlier of January 8, 2010 or the date upon which the Proxy Statement/Prospectus is first mailed to the stockholders of the Company and, if deposited into escrow, the terms of the definitive agreements with respect to the Debt Financing do not impose any material conditions on the release of such net proceeds from escrow other amount required to be paid by Parent or Merger Sub in connection with than the consummation of the Transactions.
(b) The Debt Commitment Letter is Merger as provided in full force this Agreement and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 the Commitment Letter. Parent shall (1) keep the Company informed on a reasonably current basis and Section 6.2 and in reasonable detail of the performance by the Partnership status of its obligations efforts to arrange the Debt Financing, (2) give the Company prompt notice (x) of any material breach by any Lender under this Agreementthe Commitment Letter or any definitive agreements relating thereto of which Parent or Merger Sub becomes aware, (y) if and when Parent does not have any reason to believe or Merger Sub becomes aware that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition portion of the Debt Financing contemplated by the Commitment Letter required is not available to be satisfied by itconsummate the Transactions, and (z) of any termination of the Commitment Letter, and (3) provide to the Company copies of executed copies of the definitive agreements relating thereto (with confidential fee terms redacted). In the event that the all conditions to the Debt Financing have been or, upon funding will be, satisfied, Parent shall use its commercially reasonable efforts (which may include, in Parent’s discretion after consultation with the Debt Commitment Letter will not otherwise be satisfied Company, the pursuit of any claim or that action for specific performance of the full amount terms of the Debt Financing will not be available Financing) to cause the Lenders and any other lenders involved therein to fund on the Closing Date. The only conditions precedent or other contingencies related to the obligations of Date the Debt Financing Sources party required to consummate the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written Merger and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderTransactions.
Appears in 1 contract
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing (including, to the Partnership extent required, complying with the full exercise of the “flex” provisions) at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letters in accordance with the terms and subject to the conditions (including the “flex” provisions) thereof, (ii) comply with its obligations under the Debt Commitment Letters, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including the “flex” provisions) contained in the Debt Commitment Letters as promptly as practicable after the date hereof, but in no event later than the Closing, or on such other terms and conditions no less favorable in the aggregate to Parent and Merger Sub than the terms and conditions contained in the Debt Commitment Letters (provided that such other terms would not reasonably be expected to materially delay or hinder the Closing), (iv) satisfy on a true timely basis (or obtain the waiver of) all conditions to funding that are within the control of Parent and complete copy Merger Sub in the Debt Commitment Letters (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) unless it has obtained alternative financing pursuant to Section 6.16(c) hereof, enforce its rights pursuant to the Debt Commitment Letters, and (vi) in the event that all conditions in the Debt Commitment Letters have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing. Parent will pay, or will cause to be paid, all fees arising under the Debt Commitment Letters as they become due.
(b) Subject to the terms and conditions of this Agreement, Parent will not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Debt Commitment Letters (other than pursuant to “flex” provisions contained in the Debt Commitment Letters) without the consent of the Company if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing to be funded on the Closing Date (unless Parent has a fully sufficient amount of available cash on hand from other sources to make the representation set forth in Section 4.16 as though made at the time of the effectuation of such amendment or modification), (ii) impose new or additional conditions or other terms to the Debt Financing or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing, in a manner that would reasonably be expected to: (A) delay, prevent or materially impede the consummation of the Merger, or (B) make the timely funding of the Debt Financing, or the satisfaction of the conditions to obtaining the Debt Financing, less likely to occur in any material respect, or (iii) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters or the definitive agreements with respect thereto; provided, that for the avoidance of doubt, Parent may amend, amend and restate or replace the existing Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed debt commitment letter dated the Debt Commitment Letters as of the date hereof. Parent shall promptly (i) furnish the Company complete, together with all schedulescorrect and executed copies of any amendments, exhibitsrestatements, annexes supplements, amendments and term sheets attached theretorestatements, modifications, waivers or replacements to the Debt Commitment Letters and (ii) give the Company prompt notice of any breach (or threatened breach asserted in writing) by any party of the Debt Commitment Letters of which Parent becomes aware or any termination thereof; provided that in no event shall Parent be under any obligation to disclose any information pursuant to which clauses (i) or (ii) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. In addition to the foregoing, Parent shall not, and shall cause its Subsidiaries not to, release or consent to the termination of the Debt Commitment Letters or of any individual lender under the Debt Commitment Letters, except (x) for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Debt Financing Sources party thereto have committed under the Debt Commitment Letters, (y) for replacements of the Debt Commitment Letters with alternative financing commitments pursuant to provide to Merger SubSection 6.17(c), subject to the terms and conditions therein, debt financing (z) in connection with a reduction of the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing otherwise permitted pursuant to this Section 6.16.
(c) In the “Debt Commitment Letter”). As event that any portion of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter provided Letters (after giving effect to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreementall applicable flex provisions), Parent does not have any reason to believe that any party to shall use its reasonable best efforts to, as promptly as practicable following the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition occurrence of the Debt Commitment Letter required to be satisfied by itsuch event, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally bindingi) to which Parent, Merger Sub or any Table of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.Contents
Appears in 1 contract
Debt Financing. (a) As of the date of this Agreement, Parent has delivered to the Partnership a true Company and the Representative true, complete copy and correct copies of a fully the executed debt commitment letter dated as (the “Debt Financing Commitment Letter”) and corresponding customarily redacted fee letter (none of which redacted terms would reasonably be expected to adversely affect the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which amount or availability of the Debt Financing Sources party thereto have committed or affect the conditions thereto) from the financial institutions identified therein (the “Debt Financing Commitments,” as each may be amended or replaced from time to provide time to Merger Subthe extent permitted by Section 5.8(a)) to provide, subject to the terms and conditions therein, debt financing in the aggregate amount amounts set forth therein for the purpose of funding the Transactions (being collectively referred to as the “Debt Financing”). The Debt Financing Commitment Letter is a legal, valid and binding obligations of Spectrum Brands, Inc. (a wholly‑owned Subsidiary of Parent), and to the knowledge of Parent, the other parties thereto, and is enforceable in accordance with its terms, except (a) with only fee amounts to the extent that enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Applicable Laws affecting the enforcement of creditors’ rights generally and other customary commercially sensitive terms redacted(b) that the availability of equitable remedies, none of which redacted provisions could affect including specific performance, is subject to the conditionality, enforceability, availability or aggregate principal amount discretion of the Debt Financing (the “Debt Commitment Letter”)court before which any proceeding thereof may be brought. As of the date of this Agreementhereof, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect effect, and the Debt Financing Commitment Letter has not been withdrawn, rescinded or terminated or otherwise amended or modified in any respect, and no such amendment or modification is the legalcontemplated. Neither Parent nor Spectrum Brands, valid, binding and enforceable obligation Inc. is in breach of Parent and, to the Knowledge of Parent, each any of the other parties theretoterms or conditions set forth in the Debt Financing Commitment Letter, except and as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach, default or breach failure to satisfy any condition precedent set forth therein. As of the date hereof, Parent has no reason to believe that any of the conditions in the Debt Financing Commitment Letter will not be satisfied, or that the Debt Financing will not be made available on a timely basis in order to consummate the Transactions. As of the date hereof, no counterparty to any Debt Financing Commitment Letter has notified Parent or Spectrum Brands, Inc. of its intention to terminate the Debt Financing Commitment Letter or not to provide the Debt Financing. The net proceeds from the Debt Financing, together with other sources of liquidity as shall be available to Parent, will be sufficient to consummate the Transactions, including the payment of all fees and expenses of or payable by Parent, Spectrum Brands, Inc., Merger Sub or the Surviving Corporation, and any related repayment or refinancing of any Closing Date Funded Indebtedness, and any other amounts required to be paid in connection with the consummation of the Transactions. Parent and Spectrum Brands, Inc. have paid in full any and all commitment or other fees required by the Debt Financing Commitment Letter that are due as of the date hereof, and will pay, after the date hereof, all such fees as they become due. There are no conditions precedent or contingencies to the obligations of the parties under the Debt Financing Commitment Letter (including, to the extent applicable, pursuant to any “flex” provisions in the related fee letter or otherwise) to make the full amount of the Debt Financing available to Parent or Spectrum Brands, Inc. on the terms therein except as expressly set forth in the Debt Financing Commitment Letter. There are no side letters or other Contracts to which Parent or any of its Subsidiaries orAffiliates (including Spectrum Brands, Inc.) is a party related to the Knowledge funding of Parent, any other party thereto, of any term the full amount of the Debt Financing that could adversely affect the availability of the Debt Financing other than as expressly set forth in the Debt Financing Commitment Letter. As No Person has any right to impose, and none of the date providers under the Debt Financing Commitment Letter or Parent or Spectrum Brands, Inc. has any obligation to accept, any condition precedent to such funding other than any of the conditions expressly set forth in the Debt Financing Commitment Letter nor any reduction to the aggregate amount available under the Debt Financing Commitment Letter on the Closing Date (nor any term or condition which would have the effect of reducing the aggregate amount available under the Debt Financing Commitment Letter on the Closing Date, except as expressly provided therein). Subject to the Company’s compliance with this Agreement, assuming Agreement and the satisfaction (or waiver) of the conditions set forth in Section 6.1 and Section 6.2 and (other than those conditions that by their nature are to be satisfied at the performance by Closing, but subject to the Partnership satisfaction or waiver of its obligations under this Agreementsuch conditions), Parent does not have any has no reason to believe that any party to the Debt Commitment Letter it will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that funding of the full amount of the Debt Financing, or that the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be it is not a condition to Closing under this Agreement for Parent or Spectrum Brands, Inc. to obtain the Debt Financing, any obligations of the Sponsor Entities hereunderAlternative Debt Financing or any other financing.
Appears in 1 contract
Debt Financing. In connection with the entry into the arrangement agreement, the Purchaser has entered into a commitment letter with Canadian Imperial Bank of Commerce (a“CIBC”) Parent has delivered and HSBC Bank Canada (“HSBC”). Pursuant to the Partnership commitment letter, CIBC and HSBC (collectively, the “Banks”) and the Purchaser are expected to enter into definitive documentation to provide the Purchaser with a true and complete copy $150 million, two-year revolving credit facility, inclusive of a fully executed debt commitment letter dated of credit sublimit in the amount of $5 million (the “Credit Facility”). The proceeds of the Credit Facility are expected to be used (i) to partially finance the Arrangement, including the repayment (if necessary) of existing indebtedness of CRH and the transaction expenses related to the Arrangement, (ii) to finance permitted acquisitions and (iii) for working capital and general corporate purposes, in the form of revolving loans, letters of credit and overdraft loans on or after the closing date of the Credit Facility until the maturity of the Credit Facility, which is the second anniversary of the closing date. Amounts borrowed under the Credit Facility that are repaid or prepaid may be re-borrowed. The obligations of the Banks to provide the Credit Facility are subject to a number of conditions, including: • the Purchaser directly owning 100% of the voting and economic interests in CRH immediately after giving effect to the transactions contemplated by the Arrangement Agreement; • the CRH Board and the board of directors of the Purchaser having authorized and approved the transactions contemplated by the Arrangement Agreement and CIBC, as administrative agent, having received satisfactory evidence of the same; • all conditions precedent (other than the payment of any portion of the purchase price being funded with proceeds of the Credit Facility) as set out in the Arrangement Agreement in substantially the same form and substance as provided to the Banks in writing as of the date hereofof the commitment letter, together with having been satisfied or waived by the Purchaser, such that the Arrangement will be consummated on the closing date of the Credit Facility; • the Purchaser having delivered to the CIBC, as administrative agent, true and complete final copies of the Arrangement Agreement and all schedules, exhibits, annexes and term sheets attached amendments thereto, pursuant if any, since the Arrangement Agreement was previously delivered to which CIBC, and the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject Arrangement Agreement with such amendments being in form and substance satisfactory to the terms Banks; • the Banks having received and conditions thereinsatisfactorily reviewed pro forma projections with respect to the Purchaser for a two year period following the closing date of the Credit Facility with an annual breakdown of covenants and projections, debt financing and the Banks being satisfied, based on financial statements (actual and pro forma), projections and other evidence provided by the Purchaser, or requested by the Banks, that the Purchaser, after incurring the indebtedness contemplated by the Credit Facility, will be solvent, able to satisfy its obligations as they mature and remain adequately capitalized; • there not having occurred or become known any material adverse change or any condition or event that could reasonably be expected to result in a “Material Adverse Effect” with respect to CRH (as described in “The Arrangement Agreement—Representations and Warranties,” beginning on page 75); • the Banks having received a detailed Quality of Earnings report, prepared by KPMG or another nationally recognized accounting firm and acceptable to the Banks, of CRH for the fiscal year ended December 31, 2020, in form and substance acceptable to the Banks; • the Banks having received satisfactory evidence (including supporting schedules and other data) that, after giving pro forma effect to the transactions contemplated by the Arrangement Agreement, the total leverage ratio of the Purchaser will not exceed 3.25:1.00; • no law or regulation being applicable in the aggregate amount set forth therein (judgment of the “Debt Financing”) Banks that restrains, prevents or imposes material adverse conditions upon any component of the transactions contemplated by the Arrangement Agreement or the financing thereof, including the Credit Facility; • the Banks being satisfied with only fee amounts their business, financial, accounting, tax, legal, insurance, ownership, corporate governance and environmental due diligence as well as third party due diligence, including, but not limited to, a quality of earnings report, tax review and insurance review; and • the Banks having received such other legal opinions, corporate documents and other customary commercially sensitive terms redacted, none of which redacted provisions could affect instruments and/or certificates as the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”)Banks may reasonably request. As of the date of this Agreementproxy statement, the Debt Commitment Letter commitment letter remains in effect, and WELL has not notified us of any plans to utilize financing in lieu of the form delivered to financing described above. The documentation governing the Partnership debt financing contemplated by the commitment letter has not been amended or modifiedfinalized and, no such amendment or modification is contemplated and none accordingly, the actual terms of the obligations and commitments contained debt financing may differ from those described in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactionsproxy statement.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Samples: Arrangement Agreement
Debt Financing. (a) Parent has Pxxxxx and Merger Sub have delivered to the Partnership Company a true and complete copy of a fully the executed debt commitment letter letter, dated as of the date hereof, together with including all exhibits, schedules, exhibits, annexes and term sheets attached theretoother attachments thereto (as amended from time to time after the date hereof in accordance with, and subject to the limitations contained in, this Section 5.10, the “Debt Commitment Letter”), pursuant to which the Debt Financing Sources lenders party thereto have committed agreed to provide to Merger Sub, subject to the terms and conditions therein, Parent (or one or more of its Affiliate party thereto) debt financing in the aggregate amount amounts set forth therein (the “Debt Financing”) with ). Parent and Merger Sub have also delivered to the Company true and complete copies of the fee letter relating to the Debt Financing (as amended from time to time after the date hereof, the “Debt Financing Fee Letter”), in which the only redactions are the fee amounts amounts, “flex” terms and other customary commercially sensitive economic terms redactedcustomarily redacted pursuant to merger agreements of this type, none of which redacted provisions could and such redactions do not relate to any terms that would be reasonably likely to adversely affect the conditionality, enforceability, availability or termination of the Debt Commitment Letter or reduce the aggregate principal amount of the Debt Financing (below the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub amount required to pay the aggregate Merger Consideration in respect of the Merger and any other amount amounts required to be paid by Parent or Merger Sub at the Closing in connection with the consummation of the TransactionsTransactions and to pay all related fees and expenses (including those payable to Representatives) payable by Parent and Merger Sub in connection with the Transactions (such amount collectively, the “Required Amount”) after giving effect to any cash or other sources of liquidity available to Parent and Merger Sub.
(b) The As of the date hereof, (i) the Debt Commitment Letter has not been amended, modified, terminated or withdrawn, and no such amendment, modification, termination or withdrawal is currently contemplated (other than (x) to add lenders, lead arrangers, investors, bookrunners, syndication agents or other entities who have not executed the applicable Financing Commitment Letter as of the date of this Agreement or (y) to give effect to any market “flex” provisions in the Debt Financing Fee Letter), (ii) the Debt Commitment Letter is in full force and effect and is constitute the legal, valid, valid and binding and enforceable obligation obligations of Parent Parent’s Affiliate party thereto and, to the Knowledge knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As Exceptions, (iii) the Debt Financing is subject to no conditions precedent, other than those expressly set forth in the Debt Commitment Letter, (iv) to the knowledge of Parent, no fact, circumstance or occurrence exists that would reasonably be expected to result in any additional conditions or contingencies that would adversely affect the availability of the date of this Agreement, Debt Financing and (v) no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent (or any of its Subsidiaries or, to the Knowledge of Parent, any other Affiliate party thereto, of any term ) under either of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 Letter and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any has no reason to believe that any it (or its Affiliate party to the Debt Commitment Letter thereto) will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the funding of the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be made available to Parent on the Closing Date. The only conditions precedent or other contingencies related to the obligations .
(c) As of the Debt Financing Sources party to date hereof, other than the Debt Commitment Letter to fund the full amount of and the Debt Financing are those expressly set forth in the Debt Commitment Fee Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub Parent or any of their its Affiliates is a party related to the funding or investing, as applicable, of the Debt Financing required to pay the Required Amount that would (i) impair the enforceability of the Debt Commitment Letter, (ii) reduce the aggregate amount of any portion of the Debt Financing such that the aggregate amount of the Debt Financing would be below the Required Amount (after giving effect to any cash or other than as expressly contained sources of liquidity available to Parent and Merger Sub), (iii) impose new or additional conditions precedent to the Debt Financing or (iv) otherwise adversely modify any of the conditions precedent to the Debt Financing that would reasonably be expected to prevent or delay the consummation of the Debt Financing.
(d) Assuming the satisfaction in full (and not waiver) of all of the conditions to Closing and assuming the Debt Financing is funded in accordance with the Debt Commitment Letter, Parent, Merger Sub and their respective Subsidiaries will have at the Closing sufficient cash, available lines of credit or other sources of immediately available funds to enable it to pay the Required Amount.
(e) Parent has fully paid, or caused to be paid, any and all commitment fees or other fees required by the terms of the Debt Commitment Letter and delivered to the Partnership prior to be paid on or before the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Samples: Merger Agreement (SecureWorks Corp)
Debt Financing. (a) Parent has delivered shall, and shall cause its Subsidiaries to, use its reasonable best efforts to the Partnership a true take, or cause to be taken, all actions and complete copy of a fully executed debt commitment letter dated as of the date hereofto do, together with or cause to be done, all schedulesthings necessary, exhibits, annexes proper or advisable to consummate and term sheets attached thereto, pursuant to which obtain the Debt Financing Sources party thereto have committed to provide to Merger Sub, on the terms (including any “market flex” provisions) and subject only to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided as promptly as practicable, including to (i) maintain in effect and comply with the Debt Commitment Letter and the definitive agreements relating to the Partnership pursuant Debt Financing that are under control of Parent or any of its Subsidiaries, (ii) negotiate and enter into definitive agreements relating to this Section 4.6. Assuming the accuracy of Debt Financing on the representations and warranties set forth in Section 3.2(aterms (including any “market flex” provisions) and compliance by subject only to the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded conditions contained in accordance with the Debt Commitment Letter, together so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date, (iii) ensure the accuracy of all representations and warranties of Parent, Acquisition Sub and their respective Subsidiaries set forth in the Debt Commitment Letter and definitive agreements relating to the Debt Financing, (iv) comply with cash on hand the covenants and agreements of Parent, Acquisition Sub and their respective Subsidiaries set forth in the Debt Commitment Letter and the definitive agreements relating to the Debt Financing that are under control of Parent and or any of its Subsidiaries, will provide Parent (v) satisfy or obtain a waiver of, and Merger cause Acquisition Sub with sources of immediately available funds and its other Subsidiaries to satisfy or obtain a waiver of, on a timely basis all terms and conditions set forth in the aggregate sufficient for Parent Debt Commitment Letter and Merger the definitive agreements relating to the Debt Financing applicable to Parent, Acquisition Sub and their respective Subsidiaries, (vi) upon satisfaction or waiver of such conditions and the other conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that by their nature cannot be satisfied until the Closing) consummate the Debt Financing, and to pay cause the aggregate Merger Consideration lenders and the other Persons providing the Debt Financing to provide the Debt Financing, in each case, at or prior to the Closing (and in any event prior to the Termination Date), (vii) pay, or cause to be paid, any and all commitment fees or other amount fees required by the Debt Commitment Letter or fee letters to be paid by Parent on or Merger Sub in connection with before the consummation of Closing and (viii) enforce its rights under the Transactions.
(b) The Debt Commitment Letter is and the definitive agreements relating to the Debt Financing. Parent will provide to the Company copies of all documents relating to the Debt Financing and keep the Company informed of material developments in full force and effect and is respect of the legalfinancing process relating thereto on a current basis, validincluding providing the Company with prompt written notice (and, binding and enforceable obligation in any event, within twenty-four (24) hours) after the occurrence of Parent andany of the following: (i) of any termination of (A) the Debt Commitment Letter, or (B) any definitive agreement relating to all or any portion of the Debt Financing, (ii) any actual or threatened material breach, default, termination or repudiation (or, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no any event has occurred whichor circumstance that, with or without notice, lapse of time or both, would could result in any such breach, default, termination or would reasonably repudiation) of any provision of the Debt Commitment Letter or any definitive agreement relating to all or any portion of the Debt Financing by any party thereto or any event or circumstance that makes a condition precedent to the Debt Financing unable or unlikely to be expected satisfied, in each case, of which Parent becomes aware or any termination of the Debt Commitment Letter or any definitive agreement relating to constitute a default all of any portion of the Debt Financing, (iii) if at any time for any reason Parent believes in good faith that it will not be able to obtain all or breach any portion of the Debt Financing on the terms and conditions, in the manner or from the sources contemplated by the Debt Commitment Letter or (iv) the receipt by any of Parent or any of its Subsidiaries or, to the Knowledge Affiliates or any of Parent, any other party thereto, their respective Representatives of any term of the Debt Commitment Letter. As of the date of this Agreementwritten notice or communication from any Person with respect to any material breach, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance default, termination or repudiation by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter or any definitive agreement relating to all or any portion of the Debt Financing or any provision of the financing contemplated pursuant to the Debt Commitment Letter or any such definitive agreement (including any proposal by any lender to withdraw, terminate or reduce the amount of financing contemplated by the Debt Commitment Letter, materially delay the timing of financing contemplated by the Debt Commitment Letter or fund under terms that are materially different from those set forth in Debt Commitment Letter). Parent will not, and will not permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that could reasonably be unable expected to satisfy on a timely basis impair, delay or prevent consummation of all or any term portion of the Debt Financing.
(b) Prior to the Closing, Parent will not agree to, or condition permit, any amendment, modification, joinder, assignment, termination or waiver of the Debt Commitment Letter required or the definitive agreements with respect to be satisfied by itthe Debt Financing , that or enter into any side letters or other Contracts or arrangements under or in respect of the Debt Financing, in each case, without the prior written consent of the Company if such amendment, modification, joinder, termination, waiver, side letter, Contract or arrangement (i) imposes additional or new conditions precedent to the availability of the Debt Financing or amends, modifies, expands or otherwise changes any of the conditions to the funding of the Debt Financing, delays or prevents the funding of any portion of the Debt Financing on the Closing Date, (ii) adversely impacts the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto or to consummate the transactions contemplated by this Agreement, (iii) makes it less likely that the Debt Financing would be funded on the Closing Date or makes the satisfaction of the of the conditions to obtaining the Debt Financing less likely to occur, (iv) reduces the aggregate cash amount of the funding commitment thereunder below an amount required to pay the Required Amount or (v) results in the early termination of the Debt Commitment Letter. Parent shall promptly deliver to the Company copies of any amendment, modification, joinder, assignment, supplement or waiver to or under any Debt Commitment Letter entered into in accordance with this Section 6.20(b) and the definitive agreements relating to the Debt Financing.
(c) In the event all or any portion of the debt financing contemplated in the Debt Commitment Letter will not otherwise becomes or would reasonably be satisfied or that the full amount of the Debt Financing will not be available expected to become unavailable on the Closing Date. The only terms and conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to (including any “market flex” provisions) contemplated in the Debt Commitment Letter Letter, the Parent shall use its reasonable best efforts to fund 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 the full same or alternative sources in an amount sufficient, when taken together with the available funds of the Debt Financing Parent, to consummate the transactions contemplated by this Agreement (“Replacement Financing”) on terms and conditions that are those expressly not materially less favorable to the Parent than the terms and conditions set forth in the Debt Commitment Letter as in effect the date hereof (taken as a whole, including any “market flex” provisions) (it being agreed that any such Replacement Financing shall comply with the requirements set forth in clauses (i) through (iv) of Section 6.20(b), mutatis mutandis) as promptly as practicable following the occurrence of such event. In the event such Replacement Financing is obtained, any reference in this Agreement to the “Debt Commitment Letter” will be deemed to include the Debt Commitment Letter to the extent not superseded by the new debt commitment letter evidencing such Replacement Financing at the applicable time and any such new debt commitment letter to the extent then in effect, and any reference in this Agreement to Debt Financing means the debt financing contemplated by the Debt Commitment Letter as modified pursuant to the foregoing. As Copies of the date commitment letter and fee letter (with redactions related to fees, price caps, securities demand and other economic and any “market flex” provisions; provided that such redacted terms would not adversely affect the conditionality, availability or termination of this Agreement, there are no side letters the Debt Financing contemplated by such commitment letter or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments reduce the amount of the Debt Financing available to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related less than the amount required with respect to the Debt Financing other than as expressly contained in to consummate the Debt Commitment Letter and delivered transactions contemplated hereby) for the Replacement Financing shall be promptly provided to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderCompany.
Appears in 1 contract
Debt Financing. (a) Parent Omega has delivered to received the Partnership a true and complete copy of a fully executed debt financing commitment letter dated letters, attached hereto as of the date hereofExhibit D, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which obligate the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) in the amount and on the terms and conditions set forth therein (together with only fee amounts the exhibits, schedules and other customary commercially sensitive terms redactedannexes thereto, none of which redacted provisions could affect the conditionalityas amended, enforceabilityrestated, availability supplemented or aggregate principal amount of the Debt Financing (otherwise modified, the “Debt Commitment LetterLetters”). As of the date of this Agreement, the each Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a(i) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and has not been modified or amended in any respect and no modification or amendment is contemplated (except in connection with any amendments or modifications to effectuate any “market flex” terms contained in the Debt Commitment Letter provided as of the date hereof), (ii) has been duly executed by Omega and its Affiliates party thereto and, to Omega’s knowledge, the other parties thereto and is the legal, valid, valid and binding and enforceable obligation of Parent Omega and, to the Knowledge knowledge of ParentOmega, each of the other parties party thereto, (iii) has not been withdrawn or rescinded in any respect and (iv) is enforceable in accordance with its terms (except as enforcement to the extent that enforceability may be limited by and subject to applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the Bankruptcy and Equity Exceptionenforcement of creditors’ rights generally or by general principles of equity). As of the date of this Agreement, (A) no event has occurred whichthat, with or without notice, the lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent on the part of Omega or any of its Subsidiaries or, to the Knowledge of Parent, Affiliates party thereto under any other party thereto, of any term of the Debt Commitment Letter. As Letters, and neither Omega nor any of its Affiliates has any knowledge of any breach of the Debt Commitment Letters by any of the other parties thereto as of the date of this Agreement, assuming and (B) all commitment and other fees required to be paid thereunder on or prior to the date hereof have been paid. Assuming satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this AgreementArticle VI, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing except as set forth in the Debt Commitment Letter will not otherwise be satisfied or that Letters, there are no conditions precedent related to the funding of the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As Financing, and, as of the date of this Agreement, Omega has no knowledge of any facts or circumstances that are reasonably likely to result in any such condition not being satisfied on or prior to the Closing. Except for the Debt Commitment Letters and related fee letters (complete copies of which have been made available to Beta), there are no side letters or other Contractsagreements, contracts or arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Debt Financing other than as expressly contained in that would permit the Debt Commitment Letter and delivered Financing Sources to reduce the total amount of the Debt Financing or impose any additional condition precedent to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderDebt Financing.
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Debt Financing. (a) Parent has delivered Subject to the Partnership a true Parent’s and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, Holdco’s right to obtain alternative financing pursuant to which Section 5.13(d), each of Parent and Holdco shall use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, consummate and obtain the proceeds of the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to on the terms and conditions therein, debt financing (including any “market flex” provisions) described in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”Letter (or terms more favorable to Parent). As of the date of this Agreement, including using their respective reasonable best efforts to: (i) enforce their respective rights under the Debt Commitment Letter in the form delivered to event of a breach thereof by the Partnership has not been amended or modifiedFinancing Sources thereunder, no such amendment or modification is contemplated (ii) enter into definitive agreements with respect thereto on the terms and none of the obligations and commitments conditions contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided (including any “market flex” provisions), (iii) satisfy, or cause their Representatives to satisfy, on a timely basis all conditions (or terms more favorable to Holdco) applicable to, and within the Partnership control of, Parent or Holdco or their respective Representatives in such definitive agreements, and (iv) upon the satisfaction of the Parent’s obligation to consummate the Parent Merger, consummate the Debt Financing at the Closing (with respect to amounts required to consummate the Mergers).
(b) Other than pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth “market flex” provisions contained in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with neither Holdco nor Parent shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision or remedy under the Debt Commitment Letter or Financing Agreements without the prior written consent of the Company, to the extent such amendments, modifications or waivers would (i) reduce the aggregate amount of aggregate cash proceeds available from the Debt Financing (unless the Debt Financing or cash on hand of Holdco or Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in is increased by a corresponding amount) to fund the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount amounts required to be paid by Parent or Merger Sub in connection with Holdco under this Agreement (as compared to the consummation amount of such aggregate proceeds contemplated under the Transactions.
(b) The Debt Commitment Letter is as in effect on the date hereof), or (ii) impose new or additional conditions precedent or otherwise expand, amend or modify any of the conditions precedent in a manner adverse to Parent, Holdco or the Company, including any expansion, amendment or modification that would be reasonably likely to (A) prevent or delay or impair the ability of Parent and Holdco to obtain the funding in full force and effect and is of the legal, valid, binding and enforceable obligation Debt Financing or (B) adversely impact the ability of Parent and, to the Knowledge of Parent, each of enforce its rights or remedies against the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of Financing Agreements (provided that Parent may amend the Debt Commitment Letter required to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be satisfied by itexpected to delay or prevent the Closing or Parent’s ability to consummate the Debt Financing). Neither Parent nor Holdco shall release or consent to the termination of the obligations of the lenders and other Persons under the Debt Commitment Letter or Financing Agreements (provided that Holdco may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing or Parent’s ability to consummate the Debt Financing).
(c) [Reserved].
(d) In the event that the conditions to any portion of the Debt Financing becomes or is reasonably likely to become unavailable in the manner or from the sources contemplated in the Debt Commitment Letter will not otherwise be satisfied or that the full amount Financing Agreements and such portion of the Debt Financing will is reasonably required to consummate the Mergers and other transactions contemplated hereby, (i) Parent shall promptly so notify the Company and (ii) Parent and Holdco shall use their respective reasonable best efforts to arrange and obtain, and to negotiate and enter into definitive agreements with respect to, alternative financing from the same or alternative financial institutions in an amount sufficient to consummate the Transactions on terms and conditions that are not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth materially less favorable, in the Debt Commitment Letter. As of the date of this Agreementaggregate, there are no side letters or other Contracts, arrangements or understandings (whether oral or written to Parent and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other Holdco than as expressly contained those in the Debt Commitment Letter and delivered that such alternative financing would replace (taking into account any flex provisions), as promptly as practicable following the occurrence of such event. The definitive agreements entered into pursuant to the Partnership prior to the date first sentence of this Section 5.13(d) or Section 5.13(a)(ii) are referred to in this Agreement. , collectively, as the “Financing Agreements.” For purposes of the avoidance of doubtforegoing, in no event (i) the term “Debt Commitment Letter” shall the receipt be deemed to include any commitment letter (or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition similar agreement) with respect to any obligations of alternative debt financing arranged in compliance herewith (and any Debt Commitment Letters remaining in effect at the Sponsor Entities hereundertime in question), and any fee letter (or similar agreement) with respect to any alternative debt financing arranged in compliance with herewith. Without first obtaining the Company’s prior written consent (which shall not be unreasonably withheld, conditioned or delayed), neither Parent nor Holdco shall directly or indirectly take any action that would, or would be reasonably expected to, result in the Debt Financing not being available.
Appears in 1 contract
Samples: Merger Agreement (Dts, Inc.)
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts to the Partnership a true and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which obtain the Debt Financing Sources party on the terms and conditions described in the Debt Financing Commitment Letters, including using its reasonable best efforts to (i) negotiate definitive agreements with respect thereto have committed on terms and conditions contained therein, (ii) satisfy all conditions applicable to provide Parent in such definitive agreements, (iii) comply with its obligations under the Debt Financing Commitment Letters, (iv) enforce its rights under the Debt Financing Commitment Letters and (v) in the event the Debt Financing Commitment Letters are terminated prior to Merger Subthe Closing, subject obtain a renewal of, or a substitute for, the Debt Financing Commitment Letters on terms and conditions comparable in all material respects to the terms and conditions therein, debt financing contemplated in the aggregate amount Debt Financing Commitment Letters or on more favorable terms to Parent. Notwithstanding anything to the contrary in this Agreement, Parent and the Company agree that if at any time the conditions to closing set forth therein in Section 4.1 or Section 4.2 have been satisfied or waived (other than the “conditions set forth in Section 4.2(d) and any conditions that may only be satisfied at Closing) and at such time the Notes (as defined in the Debt Financing”Financing Commitment Letters) with only fee amounts and have not been issued then Parent shall have a period of fifteen business days to either cause such Notes to be issued or cause the Interim Loans (as defined in the Debt Financing Commitment Letters) to be borrowed in full, it being understood that Parent shall not be required to cause such issuances or borrowings to occur if all conditions to Closing (other customary commercially sensitive terms redacted, none of which redacted provisions could affect than Section 4.2(d)) are not satisfied at such time. In the conditionality, enforceability, availability or aggregate principal amount event any portion of the Debt Financing becomes unavailable on terms and conditions comparable in all material respects to the terms and conditions contemplated in the Debt Financing Commitment Letters, Parent shall use its reasonable best efforts to arrange to obtain any such portion from alternative sources on comparable or more favorable terms to Parent. Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Debt Financing Commitment Letters or any termination of the Debt Financing Commitment Letters. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Financing Commitment Letters if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing, amends the conditions to the drawdown of the financing or is adverse to the interests of the Company or the Amalgamated Company in any other respect.
(b) Prior to the Closing, the Company shall provide, and shall cause its Subsidiaries to, and shall use reasonable best efforts to cause the respective officers, employees, Representatives, including legal and accounting, of the Company and its Subsidiaries to, provide all cooperation reasonably requested by Parent in connection with the Debt Financing on the terms and conditions described in the Debt Financing Commitment Letters, and shall cause (i) appropriate officers and employees to be available on a customary basis to meet with prospective lenders and investors in presentations, meetings, road shows and due diligence sessions, to assist with the preparation of disclosure documents in connection therewith, to execute and deliver customary certificates, legal opinions (which may be reasoned, if counsel reasonably believes it cannot give the opinion otherwise) or documents as may be reasonably requested by Parent, and (ii) its independent accountants and counsel to provide assistance to Parent, including providing consent, on a customary basis, to Parent to use their audit reports relating to the Company and its Subsidiaries and, at the cost of Parent, to provide any necessary “comfort letters” and to prepare and deliver other customary opinions or other deliverables.
(c) Provided that Parent provides to the Company such information concerning Parent and its Subsidiaries and the Debt Financing as the Company reasonably requests or requires in connection with the following, the Company shall cause the following to occur: not later than 30 days before the Closing Date, the Administrative Agent (as defined in the Debt Financing Commitment Letter”Letters) shall have received audited, in the case of year end, and unaudited, in the case of interim (which have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100). As , consolidated financial statements of the Company and its consolidated Subsidiaries (including Bermuda Limited and the Guarantors (as defined in the Debt Financing Commitment Letters)) and financial statements relating to completed or probable acquisitions (including pro forma financial statements), in each case required by and meeting the requirements of Regulation S-X that would apply to a Form S-1 registration statement being filed by the Company on such date of delivery under the Securities Act of 1933, as amended (except with respect to the financial statements of the Loral Transferred Satellites (as such term is used in the Form F-1 as filed by the Company with the SEC on April 22, 2004) and the pro forma financial information giving effect to the Company’s acquisition of the Loral Transferred Satellites, as modified in accordance with the letter of the Company to the SEC, dated August 26, 2003, and the SEC’s response thereto, dated August 28, 2003); provided that, if on any date during such 30-day period prior to the Closing Date financial statements for a later period-end would be required if the Company filed a registration statement on Form S-1 on such date, and the Administrative Agent requests that such financial statement be provided, then financial statements with such later period-end meeting the forgoing requirements shall have also been received reasonably promptly following such request and in any event prior to the Closing Date.
(d) The Parties agree that nothing contained in this Agreement shall prevent any Subsidiary of the Company from providing the funds necessary to enable the Company to satisfy its obligations as and when they come due under debt securities of the Company outstanding as of the date of this Agreement, the Debt Commitment Letter in the form delivered pursuant to the Partnership has not been amended or modified, no such amendment or modification is contemplated terms thereof.
(e) Parent’s Debt Financing will contain provisions with the same substance to clauses (i) and none (ii) of the obligations and commitments contained definition of Restricted Payments Carve-outs in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating Exhibit A to the Debt Financing other than as set forth in the Debt Commitment Letter provided (relating to the Partnership pursuant ability to this Section 4.6. Assuming the accuracy payments on existing indebtedness of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the TransactionsCompany).
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Samples: Transaction Agreement and Plan of Amalgamation (Intelsat LTD)
Debt Financing. (ai) Parent has delivered to the Partnership Company:
(A) a true true, correct and complete and fully executed copy of a fully executed debt commitment letter dated the DNB Credit Facility which is entered into as of the date hereof;
(B) a true, together correct and complete and fully executed copy of the debt commitment letter, dated as of October 5, 2017 by and among Parent, Bank of Montreal and BMO Capital Markets Corp. (collectively with its Affiliates, including Bank of Montreal, and its and its Affiliates’ officers, directors, employees, advisors, attorneys, controlling persons, agents and representatives and each of their respective successors and assigns, the “Financing Source”) (including all schedules, exhibits, annexes schedules and term sheets attached theretoannexes, pursuant to which as amended, restated, supplemented, replaced or modified, the “Debt Financing Sources party thereto have committed to provide to Merger Sub, Commitment Letters”) providing debt financing upon the terms and subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”). For the purposes of this Agreement, the term “Financing Source” shall also include DNB Bank ASA, the lender under the DNB Credit Facility and the term “Debt Financing” shall also include the debt financing provided by DNB Bank ASA under the DNB Credit Facility; and
(C) all fee letters related thereto (as redacted in a customary manner to remove only the fee amounts), in each case, including all exhibits, schedules, annexes and amendments to such letters in effect as of the date of this Agreement (together with only fee amounts the Debt Commitment Letter, the “Debt Letters”). Assuming the Financing Sources provide the Debt Financing under the terms and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount conditions of the Debt Financing Commitment Letters, Parent has, or will have as of the Effective Time, available funds sufficient to pay the aggregate Merger Consideration, the aggregate Option Consideration, any repayment or refinancing of debt contemplated in the DNB Credit Facility and the Debt Letters, all other amounts payable by Parent and Merger Sub under this Agreement, the DNB Credit Facility and the Debt Letters and the fees and expenses required to be paid in connection with the Transactions.
(ii) Neither the “DNB Credit Facility nor any Debt Letter has been amended, restated, supplemented, terminated, replaced or otherwise modified as of the date of this Agreement and, except as permitted by Section 4.06 or as otherwise agreed to in writing by the Company, as of the Closing Date, and no such amendment, restatement, supplement, termination, replacement or modification is presently contemplated. The DNB Facility, the Debt Commitment Letter”)Letters and the commitments set forth therein have not been withdrawn, modified or rescinded in any respect. As of The DNB Credit Facility and the Debt Commitment Letters, in the form so delivered to the Company on the date of this Agreement, the Debt Commitment Letter are in the form delivered full force and effect and constitute a legal, valid and binding obligation of Parent and, to the Partnership has not been amended knowledge of Parent, the other parties thereto, subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar Applicable Laws affecting creditors’ rights generally and to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplatedat law). Neither Parent, Merger Sub Parent nor any of their its Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing financing of the Transactions, other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, DNB Facility or the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Letters. Parent and its Subsidiaries, will provide Parent and or Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent has fully paid or caused to be fully paid any and Merger Sub to pay the aggregate Merger Consideration and any all commitment fees or other amount fees required to be paid by Parent or Merger Sub in connection with the consummation of DNB Credit Facility and Debt Letters that are payable on or prior to the Transactionsdate hereof.
(biii) The obligations of the Financing Sources to fund the commitments under the DNB Credit Facility and the Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and Letters are not subject to any conditions other than as expressly set forth in the Bankruptcy DNB Credit Facility and Equity Exceptionthe Debt Commitment Letters. As of the date of this Agreement, no event has occurred which, that (with or without notice, lapse of time time, or both, ) would or would reasonably be expected to constitute a breach or default under either the DNB Credit Facility or breach the Debt Letters by Parent or any of its Subsidiaries Merger Sub or, to the Knowledge knowledge of Parent, any other party parties thereto, . Parent has no knowledge of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction facts or circumstances that are reasonably likely to result in (A) any of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to DNB Credit Facility or the Debt Commitment Letter will be unable Letters not being satisfied or (B) the funding contemplated in the DNB Credit Facility or the Debt Commitment Letters is being made available to satisfy Parent on a timely basis any term or condition of in order to consummate the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderTransactions.
Appears in 1 contract
Debt Financing. (a) Parent has The Sabine Parties have delivered to the Partnership Forest Parties a true true, complete and complete correct copy of a fully the executed debt commitment letter dated as of May 5, 2014 (the date hereof“Commitment Letter”) from the lenders party thereto (collectively, together with all schedules, exhibits, annexes and term sheets attached thereto, the “Lenders”) pursuant to which the Debt Financing Sources party thereto Lenders have committed to provide to Merger Subagreed, subject to the terms and conditions thereinthereof, to provide the debt financing in the aggregate amount amounts as set forth therein (the “Financing Commitments“). The Financing Commitments pursuant to the Commitment Letter is collectively referred to in this Agreement as the “Debt Financing”) with only .” As of the date hereof, the Commitment Letter is in full force and effect and valid and binding, except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally or by general equitable principles, and the Sabine Parties have paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letter on or before the date of this Agreement. As of the date hereof, except for fee amounts and other customary commercially sensitive terms redactedletters related to the Financing Commitments, none redacted copies of which redacted provisions could affect have been provided to the conditionalityForest Parties (it being understood that such redactions shall be made in a manner satisfactory to the Financing Sources so long as they do not redact provisions, enforceabilityif any, availability that concern the amounts or aggregate principal conditionality of, or contain any conditions precedent to, the funding of the Debt Financing), there are no other Contracts that would permit the parties to the Financing Commitments to reduce the amount of the Debt Financing (or that otherwise affect the “Debt Commitment Letter”). As availability of the date of this Agreement, Debt Financing.
(b) Assuming the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none satisfaction of the obligations conditions in Sections 7.1 and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect 7.2 and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to that the Debt Financing other than as set forth is funded in accordance with the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy terms of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13Commitment Letters, the Debt Financing, when funded in accordance with the Debt Commitment LetterLetters, together shall provide the Sabine Parties with cash on hand proceeds sufficient to (i) refinance that certain Third Amended and Restated Credit Agreement, dated as of Parent June 30, 2011, among Forest, JPMorgan Chase Bank, N.A., as administrative agent, and its Subsidiariesthe lenders and other parties thereto (as amended, will provide Parent supplemented or otherwise modified, the “Existing Forest Credit Agreement”), (ii) refinance the Notes in whole or in part including by consummating the Debt Offer (clauses (i) and Merger Sub with sources (ii), together, the “Refinancing”) and (iii) pay any fees or expenses of immediately available funds in or payable by the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub Sabine Parties in connection with the consummation of Refinancing and the TransactionsDebt Financing.
(bc) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by or to Parent, Merger Sub the Sabine Parties or any Affiliate of Parent or Merger Sub be a condition to any the Sabine Parties’ obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Samples: Merger Agreement (Forest Oil Corp)
Debt Financing. (a) Parent has delivered to Buyer and MergerSub have furnished the Partnership a true Company with true, correct and complete copy copies of a fully the executed debt commitment letter Financing Commitment Letter, dated as of the date hereof, together with among Xxxxx, Inc., Xxxxx Fargo Bank, National Association, Xxxxx Fargo Securities, LLC, JPMorgan Chase Bank, N.A., and Xxxxxxx Xxxxx Bank USA, and all schedulescontracts, exhibitsfee letters, annexes engagement letters and term sheets attached theretoother arrangements associated therewith (provided, pursuant that provisions in the fee or engagement letter relating solely to fees and economic terms (other than covenants) agreed to by the parties may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing Sources party thereto have committed at the Closing to provide to Merger Subprovide, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (for the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none purpose of which redacted provisions could affect funding the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”Contemplated Transactions). As of the date of this Agreement, the Debt The Financing Commitment Letter in the form delivered to the Partnership has not been amended amended, supplemented or modified, and no provision thereof has been waived, prior to the date hereof, no such amendment amendment, restatement, supplement, modification or modification waiver is contemplated or pending, and none of the obligations and respective commitments contained in such Debt the Financing Commitment Letter have not been withdrawn, terminated or rescinded in any respect respect, and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, There are no side letter letters or other arrangement relating Contractual Obligations or arrangements related to the Debt Financing other than as expressly set forth in the Debt Financing Commitment Letter provided furnished to the Partnership Company pursuant to this Section 4.64.09. Assuming the accuracy of the representations and warranties conditions set forth in Section 3.2(a) 8.01 and compliance by the Partnership with Sections 5.2(b)(i) and 5.13Section 8.02 are satisfied at Closing, the Debt Financing, aggregate proceeds contemplated to be provided under the Financing Commitment Letter will be sufficient when funded for Buyer and the Surviving Corporation to pay and satisfy in accordance with full (w) the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub obligations pursuant to this Agreement to pay the aggregate Aggregate Closing Merger Consideration and any other amount required all amounts payable at Closing and following the Closing pursuant to Article 2, (x) the Closing Debt Amount to be paid by Parent repaid, redeemed or Merger Sub refinanced at the Closing, (y) all fees and expenses of Buyer, MergerSub and their respective Affiliates, including in connection with the consummation Contemplated Transactions and (z) all other obligations of Buyer and MergerSub under this Agreement, including Transaction Expenses paid at the Transactions.
(b) Closing. The Debt Financing Commitment Letter is not subject to any conditions or other similar contingencies other than as expressly set forth therein, and is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent andXxxxx, to the Knowledge of Parent, Inc. and each of the other parties thereto, as the case may be, except as enforcement that such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium and similar laws affecting or relating to the enforcement of creditors’ rights generally and is subject to general principles of equity, whether considered in a proceeding at law, in equity, in contract, in tort or otherwise. All commitments and other fees required to be paid under the Bankruptcy and Equity Exception. As of Financing Commitment Letter prior to the date hereof have been paid in full, and Buyer is unaware of this Agreement, no event has occurred which, with any fact or without notice, lapse of time or both, would or occurrence existing on the date hereof that would reasonably be expected to constitute a default or breach by Parent make any of the assumptions or any of its Subsidiaries or, the statements set forth in the Financing Commitment Letter inaccurate or that would reasonably be expected to cause the Knowledge of Parent, any other party thereto, of any term of the Debt Financing Commitment LetterLetter to be ineffective. As of the date of this Agreement, assuming the satisfaction of Assuming the conditions set forth in Section 6.1 8.01 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement8.02 are satisfied at Closing, Parent does not have any Buyer has no reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available to Buyer and MergerSub on the Closing Date. The only , and Buyer is not aware of the existence of any fact or event as of the date hereof that would be expected to cause such conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party not to the Debt Commitment Letter to fund be satisfied or the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderavailable.
Appears in 1 contract
Samples: Merger Agreement (Greif Inc)
Debt Financing. (a) Parent Buyer has delivered to provided the Partnership a true Company with accurate and complete copy copies of a fully the executed debt commitment letter letter, dated as of the date hereof (such letter, together with all annexes and exhibits attached thereto and the executed fee letter, dated as of the date hereof, together as amended, modified, waived, supplemented, extended or replaced in accordance with all schedulesthe terms therein (which may be redacted in respect of numeric fee amounts and "market flex" provisions specified therein), exhibits, annexes and term sheets attached thereto, the "Debt Commitment Letter") from the Debt Financing Sources pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Subagreed, subject to the terms and conditions set forth therein, debt financing in to lend the aggregate amount amounts set forth therein (for the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount purposes of the Debt Financing (Financing. Buyer will have available, and currently has written financing commitments in the “Debt Commitment Letter”). As form of the date of this Agreement, the Debt Commitment Letter with respect to, sufficient funds to consummate the Transactions, including the payment of the Transaction Consideration and all fees and expenses payable by Buyer or Merger Sub in connection with the form delivered Transactions. Notwithstanding the foregoing, Buyer expressly acknowledges and agrees that its obligation to consummate the Partnership Transactions is not subject to any condition or contingency with respect to any financing or funding by any third party. The Debt Commitment Letter has not been amended or modifiedmodified as of the date hereof, and, as of the date hereof, other than amendments or modifications solely to add lenders, lead arrangers, bookrunners, syndication agents and similar entities, no such amendment or modification is contemplated and none contemplated. As of the obligations and commitments contained in such Debt Commitment Letter have been withdrawndate hereof, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is not subject to any conditions other than as set forth expressly therein and (b) constitutes the legal, valid, binding and enforceable obligation of Parent andBuyer, and to the Knowledge knowledge of ParentBuyer, each of the other parties thereto, in each case, except as enforcement such enforceability may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, or moratorium Laws, other similar Laws affecting creditors' rights and subject to general principles of equity affecting the Bankruptcy availability of specific performance and Equity Exceptionother equitable remedies. As of the date of this Agreementhereof, (i) no event has occurred which, with notice or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any on the part of its Subsidiaries Buyer or, to the Knowledge knowledge of ParentBuyer, the other parties thereto under the Debt Commitment Letter and, to the knowledge of Buyer, the respective commitments contained therein have not been withdrawn or rescinded in any respect and (ii) there are no conditions precedent or other party thereto, of any term contingencies relating to the funding of the Debt Financing covered thereby contemplated to be funded on the Closing Date, except as stated therein. All fees required to be paid under the Debt Commitment LetterLetter prior to the date hereof have been paid in full. As of the date of this Agreementhereof, assuming the satisfaction of the conditions set forth contained in Section 6.1 ARTICLE IX and Section 6.2 and the performance by the Partnership of its obligations under this AgreementARTICLE X, Parent does not have any Buyer has no reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to contemplated by the Debt Commitment Letter to fund be funded on the full amount of Closing Date will not be made available to Buyer on the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderClosing Date.
Appears in 1 contract
Debt Financing. (a) Parent has delivered to the Partnership a true Company true, complete and complete copy correct copies of a fully an executed debt financing commitment letter dated in effect as of the date hereof, together with including all exhibits, schedules, exhibits, annexes and term sheets attached amendments thereto, and each fee letter associated therewith (collectively, the “Fee Letter,” and together with such debt financing commitment letter, the “Debt Commitment Letter”) (it being understood that the Fee Letter may be customarily redacted); provided, however, that no provisions that, or that could reasonably be expected to, adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Effective Time may be redacted) from the Lenders pursuant to which the Debt Financing Sources party thereto such Lenders have committed to provide to Merger Subthe Guarantor, subject to the terms and conditions therein, debt financing in the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement, and related fees and expenses and the refinancing of certain outstanding indebtedness of the Company (the “Debt Financing”) with only fee amounts and ). There are no side letters or other customary commercially sensitive terms redactedagreements, none of which redacted provisions contracts, understandings or arrangements that could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (other than as expressly set forth in the “Debt Commitment Letter”Letter and the Fee Letter delivered to the Company pursuant to this Section 4.9(a). .
(b) As of the date of this Agreement, : (i) the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent Guarantor, and, to the Knowledge knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by ; (ii) the Debt Commitment Letter has not been amended or modified in any respect and subject no such amendment or modification is contemplated or pending (other than amendments or modifications to the Bankruptcy Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents and Equity Exceptionsimilar entities); and (iii) the commitments contained in the Debt Commitment Letter have not been withdrawn, terminated, reduced or rescinded in any respect. As of the date of this Agreement, no event Guarantor has occurred which, with or without notice, lapse of time or both, would or would reasonably paid in full any and all fees (including commitment fees and other fees) required to be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of paid under the Debt Commitment Letter. Letter that are payable on or prior to the date of this Agreement.
(c) As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only there are no conditions precedent or other contingencies (including pursuant to any “flex” provisions in the Fee Letter or otherwise) related to the obligations funding of the full amount (or any portion) of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those except as expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters event has occurred which (with or other Contractswithout notice, arrangements lapse of time or understandings (whether oral or written and whether or not legally bindingboth) or commitments could reasonably be expected to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) constitute a failure to which Parent, Merger Sub satisfy a condition precedent by Guarantor or any of their Affiliates is a party related to its affiliates.
(d) Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and that the Debt Financing other than as expressly contained is funded in accordance with the Debt Commitment Letter Letter, the net proceeds contemplated by the Debt Commitment Letter, together with any cash on the balance sheet of the Company, will, in the aggregate, constitute the funds necessary to consummate the Merger and delivered the other transactions contemplated by this Agreement, including payment in cash of the aggregate Merger Consideration, refinancing of the Company’s indebtedness outstanding under the Existing Credit Agreement and amounts payable to holders of the Partnership prior to Series D Preferred Stock and the date Company Options in accordance with the terms of this Agreement. For the avoidance of doubt, in and to pay all related fees and expenses required to be paid by Parent and Merger Sub, and to perform their other respective obligations, under this Agreement.
(e) In no event shall the receipt or availability of any funds or financing by or to Guarantor, Parent, Merger Sub or any Affiliate of their respective affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder.
(f) Parent has caused to be a condition delivered to any the Company the original executed Payment Guarantee. Except as set forth in the Payment Guarantee, there are no conditions precedent to the obligations of the Sponsor Entities hereunderIssuing Bank to provide funds under the Payment Guarantee in accordance with the terms thereof.
(g) To the knowledge of Parent, the Payment Guarantee (i) has been duly executed by the Issuing Bank and (ii) is a legal, valid and binding obligation of the Issuing Bank, and in full force and effect, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other similar Laws of general applicability affecting creditors’ rights and to general equitable principles, including specific performance and injunctive and other forms of equitable relief. As of the date of this Agreement, Parent has paid in full any and all commitment fees or other fees required to be paid by the date hereof pursuant to the terms of the Payment Guarantee.
Appears in 1 contract
Debt Financing. (a) Concurrently with the execution of this Agreement, Parent has delivered to the Partnership Company an executed commitment letter, including all exhibits and schedules thereto, and fee letters (in the case of such fee letters, redacted in a true customary manner, including with respect to the amounts and complete copy of a fully executed debt commitment letter dated as percentages of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount fees set forth therein and with respect to “flex”), each dated July 14, 2021 (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redactedsuch agreements, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). , among Parent and the agents, arrangers, lenders, underwriters, managers and other entities acting in similar roles identified therein (together with any Persons that become a party thereto after the date hereof in accordance with the terms thereof or which become party to any definitive documentation relating to the Debt Financing, collectively, the “Financing Sources”) pursuant to which such Financing Source has committed, on the terms and subject to the conditions set forth therein, to provide or arrange all or part of the financing contemplated under the Debt Commitment Letter for the purposes of financing the transactions contemplated by this Agreement and paying related fees and expenses (the “Debt Financing”).
(b) As of the date of this Agreementhereof, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification to the Debt Commitment Letter is contemplated contemplated, and none of the obligations and commitments contained in such the Debt Commitment Letter have not been withdrawn, terminated withdrawn or rescinded in any respect and respect. There are no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter letters or other arrangement relating Contracts related to the investing or funding, as applicable, of the Debt Financing other than as expressly set forth in the Debt Commitment Letter provided and other than customary engagement letters with respect to the Partnership pursuant debt securities to this Section 4.6. Assuming the accuracy be issued in lieu of the representations and warranties set forth in Section 3.2(a) and compliance any bridge financing contemplated by the Partnership with Sections 5.2(b)(i) Debt Commitment Letter. Parent has fully paid any and 5.13, the Debt Financing, when funded all commitment fees or other fees or expenses in accordance connection with the Debt Commitment LetterLetter that are payable on or prior to the date hereof, together with cash if any, and Parent is unaware of any fact or occurrence existing on hand the date hereof that would reasonably be expected to make any of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources the assumptions or any of immediately available funds the statements set forth in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) Debt Commitment Letter ineffective. The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge knowledge of Parent, each of the other parties thereto, except as enforcement the case may be limited by and be, subject to the Bankruptcy effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and Equity Exceptionother similar applicable Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). As There are no conditions precedent related to the funding of the date of this AgreementDebt Financing on the Closing Date, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of than as expressly set forth in the Debt Commitment Letter. As of the date of this Agreementhereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance compliance by the Partnership Company with Section 5.12, no event has occurred that, with or without notice, lapse of its obligations time or both, would reasonably be expected to (i) constitute a default or breach on the part of Parent under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable Letter, (ii) constitute or result in a failure to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the terms or conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As , or (iii) otherwise result in any portion of the date Debt Financing not being available on the Closing Date. Assuming the satisfaction of this Agreementthe conditions set forth in Section 6.1 and Section 6.2 and compliance by the Company with Section 5.12, there are Parent has no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments reason to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or believe that any of their Affiliates is a party related the conditions to the Debt Financing other than as expressly contained in contemplated by the Debt Commitment Letter and delivered to will not be satisfied or that the Partnership Debt Financing will not be made available on or prior to the date Closing, and Parent is not aware of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability existence of any funds fact or financing by or event as of the date hereof that would reasonably be expected to cause such conditions to funding not to be satisfied and the Closing not to occur. The Debt Financing, together with cash on hand of the Parent, Merger Sub or any Affiliate provides for, at the Closing, funds sufficient to satisfy all payment obligations of Parent required to be made hereunder at or Merger Sub be a condition to any obligations of in connection with the Sponsor Entities hereunderClosing.
Appears in 1 contract
Samples: Merger Agreement (Welbilt, Inc.)
Debt Financing. As of the date of this Agreement, Acquiror has received and accepted (ax) Parent has delivered to the Partnership a true and complete copy of a fully an executed debt commitment letter letter, dated as of the date hereofof this Agreement (the “ABL Commitment Letter”), together with all schedulesand an executed fee letter, exhibitsdated as of the date of this Agreement, annexes from Bank of America, N.A., Bank of Montreal and term sheets attached theretoING Capital LLC, and (y) an executed debt commitment letter, dated as of the date of this Agreement (the “Second Lien Commitment Letter”), and an executed fee letter, dated as of the date of this Agreement, from Solus Alternative Asset Management LP (the lenders referenced in clauses (x) and (y) are collectively referred to herein as the “Lenders” and the letters referenced in clauses (x) and (y) are collectively referred to herein as the “Debt Commitment Letters”), pursuant to which the Debt Financing Sources party thereto Lenders have committed to provide to Merger Subdebt financing in the amounts set forth in the applicable Debt Commitment Letter (the “Debt Financing”), subject to the terms and conditions therein, debt financing set forth in the aggregate amount set forth therein (the “applicable Debt Financing”) with only fee amounts Commitment Letter. A true, correct and other customary commercially sensitive terms redacted, none complete copy of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount each of the Debt Financing (Commitment Letters in effect as of the “date of this Agreement has been provided to the Companies and the Holder Representatives. Acquiror has fully paid any and all commitment fees or other fees required by the Debt Commitment Letter”)Letters to be paid on or before the date of this Agreement. As of the date of this Agreement, the (i) each Debt Commitment Letter (A) is in full force and effect without amendment or modification, (B) is the form delivered valid, binding and enforceable obligation of Acquiror (or its applicable Affiliate) and, to the Partnership Knowledge of Acquiror, each other party thereto (except, in any case, as may be limited by applicable bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by principles of equity) and (C) has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect respect, (ii) the Debt Commitment Letters constitute all of the Contracts and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has arrangements entered into any agreementbetween each of the Lenders and their Affiliates, side letter or on the one hand, and Acquiror and its Affiliates, on the other arrangement relating hand, involving the availability of the funding in full of the Debt Financing as contemplated by the Debt Commitment Letters, other than customary engagement letters with respect to the Debt Financing other than as set forth in that have been made available to Panavision and the Debt Commitment Letter provided Panavision Holder Representative prior to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations date hereof, and warranties set forth in Section 3.2(a(iii) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, that (with or without notice, lapse of time or both, would or ) would reasonably be expected to constitute a default breach on the part of Acquiror, Panavision Acquisition Sub or breach by Parent SIM Acquisition Sub under any Debt Commitment Letter (assuming the accuracy of the representations and warranties and undertakings of Panavision, SIM and the SIM Sellers in this Agreement for such purposes). There are no conditions precedent or any of its Subsidiaries or, other contingencies related to the Knowledge of Parent, any other party thereto, of any term funding in full of the Debt Financing, other than as set forth in the Debt Commitment LetterLetters. As of the date of this Agreement, assuming the satisfaction none of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this AgreementAcquiror, Parent does not have Panavision Acquisition Sub or SIM Acquisition Sub has any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will would not otherwise reasonably be expected to be satisfied or that the full amount of the Debt Financing will would not reasonably be expected to be available in full on the Closing Date. The only conditions precedent or other contingencies related Date when required pursuant to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Samples: Business Combination Agreement (Saban Capital Acquisition Corp.)
Debt Financing. (a) Parent has delivered to the Partnership a true and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, received the Debt Commitment Letter in from certain lenders to provide (i)(A) a $4,350 million first lien senior secured term loan facility and (B) a $650 million first lien senior secured revolving credit facility and (ii) a $865 million second lien senior secured term loan facility (collectively, the form delivered to “Senior Secured Credit Facilities”). It is anticipated that the Partnership has not been amended or modified, no such amendment or modification is contemplated and none proceeds of the obligations new Senior Secured Credit Facilities will be used to partially finance the Offer and commitments contained the Merger, refinance certain of the Company’s and its subsidiaries’ existing indebtedness, pay related fees and expenses incurred in such Debt Commitment Letter have been withdrawnconnection with the Offer, terminated or rescinded the Merger and the other transactions and to provide for ongoing working capital and for other general corporate purposes of the Company and its subsidiaries. The First Lien Term Loan Facility will mature seven years from the date of funding and will amortize in any respect equal quarterly installments of 0.25% of the original principal amount. The first lien revolving facility will mature five years from the date of closing and no such withdrawal, termination or rescission is contemplatedwill not amortize. Neither Parent, Merger Sub nor any The Second Lien Term Loan Facility will mature eight years from the date of their Affiliates has entered into any agreement, side letter or other arrangement relating to funding and will not amortize. The definitive documentation for the Debt Financing other than Senior Secured Credit Facilities as set forth in contemplated by the Debt Commitment Letter provided will contain covenants, events of default and other terms and provisions that have been agreed with the debt financing sources party to the Partnership pursuant to this Section 4.6Debt Commitment Letter. Assuming the accuracy The availability of the representations and warranties set forth in Section 3.2(a) and compliance financing contemplated by the Partnership with Sections 5.2(b)(i) and 5.13, Debt Commitment Letter is subject to: • the Debt Financing, when funded substantially concurrent consummation of the acquisition in accordance with the Merger Agreement in all material respects; • the execution and delivery of definitive documentation with respect to the new Senior Secured Credit Facilities and customary closing documents consistent with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of ; • since the date of this the Merger Agreement, no event there shall not have been any “Effect” (which, for purposes of the Debt Commitment Letter, is defined as in the Merger Agreement) that has occurred whichhad, with or without notice, lapse of time or both, would or would reasonably be expected to constitute have, a default or breach by Parent or any of its Subsidiaries or“Company Material Adverse Effect” (which, to the Knowledge of Parent, any other party thereto, of any term for purposes of the Debt Commitment Letter. As of , is defined as in the date of this Merger Agreement) that is continuing at the scheduled “Expiration Time” (which, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition for purposes of the Debt Commitment Letter required Letter, is defined as in the Merger Agreement) and that results in a failure of a condition precedent to be satisfied by it, that Purchaser (or its affiliates’) obligations to consummate the conditions Merger pursuant to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount terms of the Debt Financing will not be available on Merger Agreement; • the Closing Date. The only conditions precedent or other contingencies related to the obligations payment of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written all applicable fees and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.expenses;
Appears in 1 contract
Debt Financing. (a) Parent Concurrently with the execution of this Agreement, SoftBank has delivered to the Partnership a true and complete copy of a fully executed debt commitment letter dated as Company copies of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, Commitment Letters pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Subwhich, and subject to the terms and conditions thereinof which, debt financing in the aggregate amount Financing Parties have committed to lend the amounts set forth therein to SoftBank for the purpose of funding the Merger and the other Contemplated Transactions (such committed financing, together with, unless the context otherwise requires, any debt securities issued in lieu thereof, the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter Letters have been duly executed and delivered by, and constitute valid and binding obligations of SoftBank. To the Knowledge of SoftBank, the Commitment Letters constitute valid and binding obligations of the Financing Parties, enforceable against the Financing Parties in accordance with their terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization or moratorium laws or other similar Legal Requirements, now or hereafter in effect, affecting creditors’ rights generally, and (ii) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, (i) each of the Commitment Letters in the form so delivered is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent (as to SoftBank and, to the Knowledge of ParentSoftBank, each the Financing Parties) valid and in full force and effect, (ii) none of the other parties theretoCommitment Letters has been withdrawn, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As terminated or otherwise amended or modified in any respect, (iii) SoftBank is not in breach of any of the date of this Agreementmaterial terms set forth therein, and (iv) no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, SoftBank of any material term of the Commitment Letters that would prevent the funds from being available, or the Financing Parties from lending, pursuant to the terms of the Commitment Letters.
(c) The Commitment Letters constitute, as of the date hereof, the entire and complete agreement among the respective parties thereto with respect to the Debt Financing contemplated thereby. Except as set forth, described or provided for in the Commitment LetterLetters, there are no conditions precedent to the respective obligations of the Financing Parties under the Commitment Letters to provide the Debt Financing. The aggregate proceeds from the Debt Financing constitute all of the financing required for the consummation of the Merger and the other Contemplated Transactions and, together with other cash sources, are sufficient to consummate the Merger and the other Contemplated Transactions.
(d) As of the date of this Agreementhereof, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any (i) SoftBank has no reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied on a timely basis or that the full amount of funding contemplated in the Debt Financing will not be made available to SoftBank on a timely basis in order to consummate the Closing Date. The only conditions precedent or Merger and the other contingencies related Contemplated Transactions, (ii) no event has occurred, to the obligations Knowledge of SoftBank, which would make any of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount assumptions or any of the Debt Financing are those expressly statements set forth in the Debt Commitment Letter. As Letters inaccurate in any material respect and (iii) no Financing Party has notified SoftBank of its intention to terminate any of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether commitments set forth in the Commitment Letters or not legally bindingto provide the Debt Financing.
(e) or commitments SoftBank has fully paid any and all commitment fees, if any, and other fees required by the Commitment Letters to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related have been paid to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership Parties on or prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderhereof.
Appears in 1 contract
Debt Financing. (a) Parent has delivered to The Parties hereby acknowledge and agree as follows: (i) the Partnership a true representations, warranties and complete copy of a fully executed debt commitment letter dated as covenants of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, “MPT Parties” pursuant to which Section 5.08(a) of the Debt Financing Sources party thereto have committed Purchase Agreement are incorporated herein and made a part hereof by this reference, and shall be deemed made and given by the MPT Parties hereunder for the benefit of Xxxxxxx; and (ii) the representations, warranties and covenants of the “IASIS Parties” pursuant to provide Section 5.8(b) of the Purchase Agreement are incorporated herein and made a part hereof by this reference, and shall be deemed made and given by Xxxxxxx hereunder for the benefit of the MPT Parties.
(b) Xxxxxxx shall use its reasonable best efforts to Merger Subtake, subject or cause to the terms be taken, all actions and conditions thereinto do, debt financing in the aggregate amount set forth therein (or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the “Debt Financing”” as defined in and pursuant to the Merger Agreement, and to otherwise comply with all provisions thereof.
(c) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect In the conditionality, enforceability, availability or aggregate principal amount event that (i) all of the Debt Financing conditions to closing of the Purchase Transaction set forth in Sections 6.1 and 6.2 of the Purchase Agreement are satisfied (other than those conditions that by their terms are to be satisfied at closing of the Purchase Transaction, but subject to the satisfaction or, if permissible, waiver of those conditions), (ii) all of the conditions to the consummation of the financing provided by the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter ” (as defined in the form delivered to the Partnership has not been amended or modifiedPurchase Agreement) or, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt if Alternative Financing other than (as set forth defined in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(aPurchase Agreement) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded is being used in accordance with Section 5.8(a) of the Debt Commitment LetterPurchase Agreement, together pursuant to the commitments with cash on hand of Parent and its Subsidiariesrespect thereto, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any have been satisfied (other amount required than those conditions that by their terms are to be paid by Parent or Merger Sub in connection with satisfied at Closing), (iii) the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, IASIS Seller Parties have delivered written notice to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction MPT Parties confirming irrevocably that all of the conditions set forth in Section Sections 6.1 and Section 6.2 of the Purchase Agreement have been satisfied and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As Section 6.3 of the date Purchase Agreement have been satisfied or waived and they are ready, willing and able to consummate the closing of this the Purchase Transaction and the IASIS Seller Parties will take all actions that are within their control to cause such closing to occur, (iv) the “Debt Financing” (as defined in the Purchase Agreement) has not been funded by the Financing Sources (as defined in the Purchase Agreement), and (v) Xxxxxxx has paid the “Reverse Termination Fee” as defined in and pursuant to Section 8.03 of the Merger Agreement, there are no side letters then, in such event, (A) if the MPT Parties (at their sole discretion) promptly commence and pursue litigation or other Contractsproceedings against the Financing Sources (as defined in the Purchase Agreement) for the financing failure described in subsection (iv), arrangements then Xxxxxxx shall also pay the MPT Parties’ out-of-pocket costs and expenses for such litigation or understandings proceedings; or (whether oral or written B) if the MPT Parties do not promptly commence such proceedings against the Financing Sources, then the MPT Parties shall reimburse Xxxxxxx for fifty percent (50%) of such Reverse Termination Fee.
(d) In the event that Xxxxxxx owes a Reverse Termination Fee (as defined in the Merger Agreement) under the Merger Agreement and whether or not legally bindingsuch obligation is caused solely by the IASIS Parties’ (as defined in the Purchase Agreement) or commitments to enter into side letters or other Contractstermination of the Purchase Agreement contemplated by Section 7.2(b) of the Purchase Agreement and the applicable MPT Parties owe the Reverse Termination Fee under and in accordance with Section 7.2(b) of the Purchase Agreement, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related then the such MPT Parties shall pay such Reverse Termination Fee to the Debt Financing other than as expressly contained in IASIS Parties under the Debt Commitment Letter and delivered to Purchase Agreement, notwithstanding the Partnership prior to the date last sentence of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations Section 8.03(b) of the Sponsor Entities hereunderMerger Agreement.
Appears in 1 contract
Debt Financing. (a) Parent has delivered shall use its best efforts to (i) arrange the Partnership a true Debt Financing on the terms and complete copy of a fully executed debt commitment letter dated conditions described in the Debt Financing Commitment Letter, (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Financing Commitment Letter, which agreements shall be in effect as of promptly as practicable after the date hereof, together with all schedulesbut in no event later than the Closing, exhibits, annexes and term sheets attached thereto, pursuant to which (iii) consummate the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to no later than 48 hours following the terms and conditions therein, debt financing in Closing. In the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount event that any portion of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter becomes unavailable in the form delivered to manner or from the Partnership has not been amended or modified, no such amendment or modification is sources contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of (A) Parent shall promptly notify the Company and its Subsidiaries, will provide (B) Parent and Merger Sub shall use their reasonable best efforts to arrange to obtain alternative financing from alternative sources, on terms that are no more adverse to the Company, as promptly as practicable following the occurrence of such event but in no event later than five business days prior to the Closing Date, including entering into definitive agreements with sources respect thereto (such definitive agreements entered into pursuant to the first or second sentence of immediately available funds in this Section 5.18 being referred to as the aggregate sufficient for “Financing Agreements”). Parent and Merger Sub shall, shall cause their affiliates to, and shall use their reasonable best efforts to pay cause their Representatives to, comply with the aggregate Merger Consideration terms, and satisfy on a timely basis the conditions applicable to such parties in the Debt Financing Commitment Letter, any alternative financing commitments, the Financing Agreements and any other amount required to be paid related fee and engagement letters. Parent shall (1) furnish complete, correct and executed copies of the Financing Agreements promptly upon their execution, (2) give the Company prompt notice of any material breach by any party of the Debt Financing Commitment Letter, any alternative financing commitment or the Financing Agreements of which Parent or Merger Sub becomes aware or any termination thereof, and (3) otherwise keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing (or any replacement thereof).
(b) The Company shall, at Parent’s sole expense, cooperate in connection with the arrangement of the Debt Financing as may be reasonably requested in advance, written notice to the Company provided by Parent (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries or otherwise materially impair the ability of any officer or executive of the Company to carry out their duties to the Company). Such cooperation by the Company shall include, at the reasonable request of Parent, (i) agreeing to enter into such agreements, and to deliver such officer’s certificates (which in the good faith determination of the person executing the same shall be accurate), as are customary in financings of such type, and agreeing to pledge, grant security interests in, and otherwise grant liens on, the Company’s assets pursuant to such agreements; provided that no obligation of the Company under any such agreement, pledge or grant shall be effective until the Effective Time, (ii) preparing business projections, financial statements, pro forma statements and other financial data and pertinent information of the type required by Regulation S-X and Regulation S-K under the Securities Act of the type and form customarily included in offering memoranda, private placement memoranda, prospectuses and similar documents, all as may be reasonably requested by Parent, (iii) making the Company’s Representatives reasonably available to assist in the preparation of materials and documents required in connection with the Financing, and (iv) otherwise reasonably cooperating in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is Financing. Notwithstanding anything in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, this Agreement to the Knowledge contrary, neither the Company nor any of Parent, each of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability or obligation in connection with the other parties thereto, except as enforcement may be limited by and subject Debt Financing (or any replacements thereof) prior to the Bankruptcy and Equity ExceptionEffective Time. As of Parent shall, promptly upon request by the date Company following the valid termination of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach Agreement reimburse the Company for all reasonable and documented out-of-pocket costs incurred by Parent the Company or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth subsidiaries in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations connection with such cooperation under this Agreement, Section 5.18(b). Parent does not have shall indemnify and hold harmless the Company and its Subsidiaries for and against any reason to believe that any party to and all losses suffered or incurred by them in connection with the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount arrangement of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth and any information utilized in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings connection therewith (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in information provided by the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt Company or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderits Subsidiaries).
Appears in 1 contract
Samples: Merger Agreement (Vantagemed Corp)
Debt Financing. (a) Parent has delivered to the Partnership Attached hereto as Exhibit F is a true true, correct and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As , dated as of the date hereof, between Silicon Valley Bank (the “Lender”) and the Parent, pursuant to which the Lender has committed, subject to the terms and conditions thereof, to provide or cause to be provided at least $30,000,000 in debt financing to the Parent in connection with the Transactions (the “Debt Financing”). The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Debt Commitment Letters and cash currently held by the Parent are sufficient to allow the Parent to (x) consummate the Transactions, including payment of this Agreement, the Adjusted Merger Consideration and (y) satisfy in cash all other obligations of Parent required to be satisfied in cash at the Closing. The Debt Commitment Letter constitutes all of the agreements entered into between the Lender (and its Affiliates) and Parent (and the Merger Sub) with respect to the financing arrangements contemplated thereby. The Debt Commitment Letter is not subject to any contingency or condition of any kind whatsoever related to the funding of the full amount of the financing contemplated by the Debt Commitment Letter in (including any “market flex” provisions or similar provisions affecting the form delivered to the Partnership has not been amended structure, pricing, maturity, amortization or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing terms) other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6executed copies thereof attached hereto. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is effect, constitute the legal, valid, valid and binding and enforceable obligation obligations of Parent and, to Parent’s Knowledge, the Knowledge of ParentLender, except, in each of the other parties theretocase, except as enforcement may be limited by and subject to the Bankruptcy and Equity ExceptionExceptions, and have not been modified or amended in any respect, and the respective commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or Neither Parent nor Merger Sub is in breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As , nor does Parent or Merger Sub have knowledge of any breach of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance Debt Commitment Letter by the Partnership of its obligations under this AgreementLender. To Parent’s knowledge, (i) neither Parent does not have nor any reason to believe that any other party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter conditions that are required to be satisfied by it, that the conditions it or such other party as a condition to the obligations under the Debt Financing in Commitment Letter prior to the expiration thereof and (ii) no portion of the financing contemplated by the Debt Commitment Letter will not otherwise be satisfied made available to Parent or that Merger Sub at the Closing. Parent has paid in full amount of the Debt Financing will not any and all commitment fees and/or other fees required to be available paid on the Closing Date. The only conditions precedent or other contingencies related prior to the obligations date hereof under the terms of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered will pay all other commitment fees and/or other fees required to be paid under the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations terms of the Sponsor Entities hereunderDebt Commitment Letter upon the Closing.
Appears in 1 contract
Samples: Merger Agreement (Telular Corp)
Debt Financing. (ai) It is not a condition to Closing or any of Parent’s or Merger Sub’s obligations under this Agreement, that Parent or Merger Sub obtain financing (or obtain financing on terms acceptable to Parent or Merger Sub) for or relating to the transactions contemplated by this Agreement. Parent has delivered to the Partnership a true Company true, correct, and complete copy copies of a fully an executed debt commitment letter from the financial institutions identified therein, dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing hereof (the “Debt Commitment Letter”, and the commitments under the Debt Commitment Letter, the “Debt Financing Commitments”). , pursuant to which, and subject to the terms and conditions of which, the lenders party thereto (the “Lenders”) have committed to lend the amounts set forth therein to Parent for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”).
(ii) As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and has not been withdrawn, rescinded, or terminated, or otherwise amended or modified (and no party thereto has indicated an intent to so withdraw, modify or rescind) in any respect and is the a legal, valid, valid and binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, including the Lenders, enforceable against Parent, and, to the Knowledge of Parent, the other parties thereto in accordance with their terms, except as enforcement such enforceability may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, other than as expressly set forth in, or contemplated by, the Debt Commitment Letter with respect to the fee letter referenced therein (a copy of all of which has been provided to the Sellers Representative with only fee and other economic terms redacted) or documentation relating to the joinder of additional commitment parties, there are no other agreements, side letters or arrangements relating to the Debt Financing Commitments that could adversely affect the availability of the Debt Financing or the timing of the Closing. As of the date of this Agreement, the only conditions precedent or other contingencies related to the obligations of the Lenders to fund the full amount of the Debt Financing Commitment are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by on the part of Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of under any term or condition of the Debt Commitment Letter. As , and, as of the date of this Agreement, assuming the satisfaction of the closing conditions set forth in Section 6.1 SECTION 5.1 and Section 6.2 SECTION 5.2 have been satisfied and the performance compliance in all material respects by the Partnership of its obligations under this AgreementCompany with SECTION 4.13, Parent does not have any reason to believe that any party to the Debt Commitment Letter it will be unable to satisfy satisfy, on a timely basis basis, any term or condition of the Debt Commitment Letter required closing to be satisfied by it, that the conditions to the Debt Financing it contained in the Debt Commitment Letter will not otherwise be satisfied Letter, or that the full amount of the Debt Financing will not be available to Parent on the Closing Date. The only conditions precedent Parent has fully paid (or caused to be paid) any and all commitment fees or other contingencies related to the obligations of fees required by the Debt Financing Sources party Commitments to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters be paid on or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to before the date of this Agreement. For Assuming (A) the avoidance of doubtclosing conditions set forth in SECTION 5.1 and SECTION 5.2 have been satisfied, (B) compliance in no event shall all material respects by the receipt or availability of any Company with SECTION 4.13, and (C) the Debt Financing is funded in accordance with the Debt Commitment Letter, the aggregate proceeds from the Debt Financing, together with immediately available funds or financing by or to from Parent, will be sufficient to pay (1) the Per Share Closing Merger Sub or Consideration for all Shares, (2) the Closing Option Payments, (3) the Indebtedness set forth in the Pay-Off Letter, and (4) any Affiliate of and all fees and expenses to be paid by Parent or Merger Sub be a condition related to any obligations of the Sponsor Entities hereundertransactions contemplated by this Agreement and the other Transaction Documents.
Appears in 1 contract
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts to the Partnership a true take (and shall cause Merger Sub to take), or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Parent Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to on or before the Closing on the terms and conditions thereindescribed in the Debt Commitment Letter (as amended, debt financing supplemented, modified, replaced, terminated, reduced or waived in accordance with Section 5.21(b)), including using reasonable best efforts to:
(i) cause Merger Sub to comply with its obligations under and maintain in effect the Debt Commitment Letter, and, once entered into, the Parent Debt Financing Agreements with respect thereto;
(ii) negotiate Parent Debt Financing Agreements with respect to the Parent Debt Financing on terms and conditions consistent in all material respects with those contained in the Debt Commitment Letter (including, as necessary, the flex or similar provisions contained in any related fee letter), or on other terms no less favorable (taken as a whole) to Parent;
(iii) cause Merger Sub to satisfy on a timely basis all conditions applicable to Merger Sub in the Debt Commitment Letter and any Parent Debt Financing Agreements with respect thereto; and
(iv) in the event of a failure to fund by the Parent Debt Financing Sources in accordance with the Debt Commitment Letter that prevents, impedes or materially delays the Closing, cause Merger Sub to enforce its rights under the Debt Commitment Letter and any Parent Debt Financing Agreements with respect thereto (including through litigation pursued in good faith).
(b) Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Debt Commitment Letter without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) if such amendment, supplement, modification, replacement, termination, reduction or waiver would or would reasonably be expected to (i) materially delay or prevent the Closing, (ii) reduce the aggregate amount set forth therein of the Parent Debt Financing to an amount which is insufficient for Parent to fund the Parent Required Amount upon the terms contemplated by this Agreement on the Closing Date, (iii) impose new or additional conditions or otherwise expand, amend or modify any of the “conditions to the receipt of the Parent Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none in each case, in a manner that could adversely impact in any material respect the ability of which redacted provisions could affect Merger Sub to obtain the conditionality, enforceability, availability or aggregate principal amount of the Parent Debt Financing or (iv) adversely impact in any material respect the “ability of Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter”). As ; it being understood that notwithstanding the foregoing Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement. Upon any amendment, supplement, modification, replacement, termination, reduction or waiver of the Debt Commitment Letter in the form delivered accordance with this Section 5.21(b), Parent shall deliver a copy thereof to the Partnership has not been amended or Company (such commitment letter, a “Replacement Commitment Letter”) and (i) references herein to “Debt Commitment Letter” shall include such documents as amended, supplemented, modified, no such amendment replaced, terminated, reduced or modification is waived in compliance with this Section 5.21(b) and (ii) references to the “Parent Debt Financing” shall include the financing contemplated and none of by the obligations and commitments contained in such Debt Commitment Letter have been withdrawnas amended, supplemented, modified, replaced, terminated reduced or rescinded waived in compliance with this Section 5.21(b); provided, that, subject to Section 5.23, it is understood and agreed that any respect Debt Commitment Letter may be replaced by the Parent Spinco Replacement Commitment Letter in connection with the Parent Spin and no in such withdrawalinstance, termination or rescission is contemplated. Neither Parentreferences herein to “Debt Commitment Letter” shall include the Parent Spinco Replacement Commitment Letter.
(c) Notwithstanding Section 5.21(b) above, Merger Sub nor in the event any portion of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Parent Debt Financing other than as set forth becomes or would reasonably be expected to become unavailable on the terms and conditions contemplated in the Debt Commitment Letter, (A) Parent shall promptly notify the Company and (B) Merger Sub shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources (the “Parent Alternate Financing”) (x) on conditions not less favorable to Merger Sub (taken as a whole) than the Debt Commitment Letter provided and (y) at least equal to the Partnership pursuant to this Section 4.6. Assuming the accuracy amount of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with such portion of the Debt Commitment Letter, together with currently available cash on hand and cash equivalents, in an amount sufficient to fund the Parent Required Amount. Copies (redacted for provisions related to fee amounts, market flex provisions and other economic terms to the extent required by the applicable Parent Debt Financing Sources) of Parent any new financing commitment letter (including any fee letter referenced in such Debt Commitment Letter) shall be promptly provided to the Company. In furtherance of, and its Subsidiariesnot in limitation of, will provide Parent and Merger Sub with sources of immediately available funds the foregoing, in the aggregate sufficient for event that any portion of the Parent Debt Financing becomes unavailable, regardless of the reason therefor, but any bridge facilities contemplated by the Debt Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 5.21(c)) are available on the terms and Merger Sub to pay conditions described in the aggregate Merger Consideration and any other amount required Debt Commitment Letter (or replacements thereof), then Parent shall cause the proceeds of such bridge financing to be paid used in lieu of such contemplated Parent Debt Financing as promptly as practicable. In the event any Parent Alternate Financing is obtained in accordance with this Section 5.21, any reference in this Agreement to “Debt Commitment Letter” or “Parent Debt Financing” shall include the debt financing contemplated by such Parent Alternate Financing. Except as provided elsewhere in this Section 5.21 and subject to the limitation in Section 5.21, nothing contained in this Agreement shall prohibit Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The from entering into Parent Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, Financing Agreements relating to the Knowledge of ParentParent Debt Financing; provided, each of the that such Parent Debt Financing Agreements may only contain other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with conditions if such Parent Debt Financing Agreements do not result in a reduction or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term replacement of the Debt Commitment Letter. As Letter prior to the funding of the date Parent Debt Financing under such Parent Debt Financing Agreements.
(d) Parent shall (i) give the Company prompt written notice of this Agreementany default, assuming the satisfaction of the conditions set forth breach or threatened breach in Section 6.1 and Section 6.2 and the performance writing by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable or Parent Debt Financing Agreements related thereto of which Parent or any of its Representatives or Affiliates becomes aware or any termination or threatened termination in writing thereof (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to satisfy on a timely basis any term or condition the terms of the Debt Commitment Letter required or Parent Debt Financing Agreements), and (ii) otherwise keep the Company reasonably informed of the status of its efforts to arrange the Parent Debt Financing.
(e) In the event any Parent Debt Financing is funded in advance of the Closing Date, Merger Sub shall keep and maintain at all times prior to the Closing Date the proceeds of such Parent Debt Financing available for the purpose of funding the transactions contemplated by the Transaction Agreements and such proceeds shall be maintained as unrestricted cash or cash equivalents, free and clear of all Encumbrances; provided, that if the terms of such Parent Debt Financing requires the proceeds of such Parent Debt Financing to be satisfied by itheld in escrow (or similar arrangement) pending the consummation of the transactions contemplated under this Agreement, that then such proceeds may be held in escrow, solely to the extent the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount release of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing such funds (taken as a whole) are those expressly set forth in no more onerous than the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Debt Financing. (a) Each of Parent has delivered and Merger Sub affirms that it is not a condition to the Partnership a true and complete copy Closing or to any of a fully its other obligations under this Agreement that Parent or Merger Sub obtain financing under the Debt Commitment Letter. As of the Agreement Date, HGV Borrower has received an executed debt commitment letter dated as of March 10, 2021 (the date hereof, “Debt Commitment Letter”) together with all schedules, exhibits, annexes and term sheets attached theretothe related fee letter executed in connection therewith from the Debt Financing Sources, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Subcommitted, subject to the terms and conditions set forth therein, debt to provide to HGV Borrower the amount of financing set forth in the aggregate amount set forth therein (Debt Commitment Letter, to complete the “Debt Financing”) with only fee amounts transactions contemplated by this Agreement. A true and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount complete copy of the Debt Financing (Commitment Letter, including all exhibits, schedules or amendments thereto, has been previously provided to the “Company. Parent or HGV Borrower has fully paid any and all commitment fees or other fees required by such Debt Commitment Letter”)Letter to be paid on or before the date hereof. As of the date of this AgreementAgreement Date, the Debt Commitment Letter is valid and in full force and effect, constitutes the form delivered legally valid and binding obligations of HGV Borrower and, to the Partnership Knowledge of Parent and HGV Borrower, the other parties thereto, subject to applicable Equitable Principles and no event has not been amended occurred which would reasonably be expected to constitute a breach thereunder on the part of HGV Borrower, or modifiedto the Knowledge of Parent and HGV Borrower, the other parties thereto. There are no such amendment conditions precedent or modification is contemplated and none other contingencies related to the funding of the obligations and commitments contained in such full amounts contemplated by the debt financing arrangements contemplated by the Debt Commitment Letter have been withdrawn, terminated or rescinded (including pursuant to any “market flex” provisions in any respect and no such withdrawalfee letter thereto) (the “Committed Debt Financing”), termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter. The Debt Commitment Letter provided has not been amended or modified prior to the Partnership pursuant to this Section 4.6. Assuming the accuracy date hereof, and, as of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13date hereof, the Debt Financing, when funded commitments contained in accordance with the Debt Commitment LetterLetter have not been withdrawn, together terminated, rescinded, amended, restated, or modified in any respect (and, no such withdrawal, termination, rescission, amendment, restatement, or modification is contemplated as of the date hereof, except with cash on hand respect to any “flex terms” contained in that certain fee letter of even date herewith and related to the Debt Commitment Letter and except for the addition as parties to the Debt Commitment Letter of lenders, lead arrangers, bookrunners, agents, managers or similar entities who have not executed the Debt Commitment Letter as of the date hereof). As of the Agreement Date, except for the Debt Commitment Letter and customary engagement and fee letters, there are no other agreements, side letters or arrangements to which Parent and its Subsidiariesor HGV Borrower is a party in respect of, will provide that modify the terms of, or that could affect the availability or amount of the Committed Debt Financing. As of the Agreement Date, Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub will, directly or indirectly, continue to pay the aggregate Merger Consideration (or cause HGV Borrower to pay) in full any and any all commitment fees or other amount fees required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, pursuant to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject terms relating to the Bankruptcy Committed Debt Financing as and Equity Exceptionwhen they become due and payable prior to the Closing Date. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this AgreementAgreement Date, Parent does not and HGV Borrower have any no reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Committed Debt Financing in the Debt Commitment Letter will applicable to HGV Borrower would not otherwise reasonably be expected to be satisfied in full or that the full amount of the Committed Debt Financing will would not reasonably be expected to be available to HGV Borrower on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Debt Financing. (a) Except as otherwise provided herein, Parent has delivered shall use its reasonable best efforts, and will cause its officers, directors, employees and representatives to the Partnership a true use their reasonable best efforts, to arrange and complete copy of a fully executed debt commitment letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which consummate the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to on the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided by using their reasonable best efforts to (a) negotiate and enter into definitive agreements with respect to the Partnership pursuant Debt Financing (in each case on terms and conditions taken as a whole not less favorable than those described in the Debt Commitment Letter on the date hereof); (b) satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to funding in the Debt Commitment Letter that are within its control and otherwise comply with and perform all of its obligations thereunder; (c) maintain in effect the Debt Commitment Letter until the Debt Financing is consummated or this Section 4.6. Assuming Agreement is validly terminated in accordance with its terms; and (d) assuming that all conditions contained in the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13Debt Commitment Letter have been satisfied, consummate the Debt Financing, when funded in accordance with . Parent shall give the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, Partnership prompt written notice of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance material breach or default by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis Letter, in each case of which it has become aware, and any term purported termination or condition of the Debt Commitment Letter required to be satisfied repudiation in writing by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources any party to the Debt Commitment Letter to fund the full amount Letter, in each case of which it has become aware. If any portion of the Debt Financing becomes unavailable and such portion is necessary to fund the Transaction Consideration, Parent and Merger Sub will provide the Partnership with prompt (but in any event, within three (3) Business Days) notice and use their reasonable best efforts to arrange for and obtain as promptly as practicable following the occurrence of any such event alternative financing (the “Alternative Financing”) in an amount sufficient to fund the Transaction Consideration on terms and conditions that, in the reasonable judgement of Parent and Merger Sub, are not materially less favorable or more onerous (including imposition of new conditions or expansion of existing conditions), in the aggregate, than those expressly set forth in the Debt Commitment Letter. As of Letter as in effect on the date of this Agreementhereof (including flex terms), there are no side letters or other Contracts, arrangements or understandings (whether oral or written it being understood that if Parent and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or proceed with any of their Affiliates is a party related Alternative Financing, Parent and Merger Sub will be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing other than as expressly contained in Financing. Neither Parent nor Merger Sub will replace, amend or modify, or waive any provision under, the Debt Commitment Letter and delivered to or terminate, withdraw or rescind the Partnership prior to the date of this Agreement. For the avoidance of doubtDebt Commitment Letter or any provision thereof, in no event shall each case, without the receipt Partnership’s prior written consent if such replacement, amendment, modification or availability waiver would, or would reasonably be expected to, when taken together with any other such amendments, modifications or waivers: (i) materially delay or prevent the Closing, (ii) make the funding of any funds the Debt Financing (or financing by or satisfaction of the conditions to Parentobtaining of the Debt Financing) less likely to occur, Merger Sub or any Affiliate (iii) adversely impact the ability of Parent or Merger Sub be a condition to any obligations enforce its rights against the other parties to the Debt Commitment Letter or the ability of the Sponsor Entities hereunder.Parent
Appears in 1 contract
Samples: Merger Agreement (CBIZ, Inc.)
Debt Financing. (a) Parent has delivered shall use its reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing (including, to the Partnership extent required, complying with the full exercise of the “flex” provisions) at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letters in accordance with the terms and subject to the conditions (including the “flex” provisions) thereof, (ii) comply with its obligations under the Debt Commitment Letters, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including the “flex” provisions) contained in the Debt Commitment Letters as promptly as practicable after the date hereof, but in no event later than the Closing, or on such other terms and conditions no less favorable in the aggregate to Parent and Merger Sub than the terms and conditions contained in the Debt Commitment Letters (provided that such other terms would not reasonably be expected to materially delay or hinder the Closing), (iv) satisfy on a true timely basis (or obtain the waiver of) all conditions to funding that are within the control of Parent and complete copy Merger Sub in the Debt Commitment Letters (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) unless it has obtained alternative financing pursuant to Section 6.16(c) hereof, enforce its rights pursuant to the Debt Commitment Letters, and (vi) in the event that all conditions in the Debt Commitment Letters have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing. Parent will pay, or will cause to be paid, all fees arising under the Debt Commitment Letters as they become due.
(b) Subject to the terms and conditions of this Agreement, Parent will not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Debt Commitment Letters (other than pursuant to “flex” provisions contained in the Debt Commitment Letters) without the consent of the Company if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing to be funded on the Closing Date (unless Parent has a fully sufficient amount of available cash on hand from other sources to make the representation set forth in Section 4.16 as though made at the time of the effectuation of such amendment or modification), (ii) impose new or additional conditions or other terms to the Debt Financing or otherwise expand, amend or modify any of the conditions to the receipt of the Debt Financing, in a manner that would reasonably be expected to: (A) delay, prevent or materially impede the consummation of the Merger, or (B) make the timely funding of the Debt Financing, or the satisfaction of the conditions to obtaining the Debt Financing, less likely to occur in any material respect, or (iii) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters or the definitive agreements with respect thereto; provided, that for the avoidance of doubt, Parent may amend, amend and restate or replace the existing Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed debt commitment letter dated the Debt Commitment Letters as of the date hereof. Parent shall promptly (i) furnish the Company complete, together with all schedulescorrect and executed copies of any amendments, exhibitsrestatements, annexes supplements, amendments and term sheets attached theretorestatements, modifications, waivers or replacements to the Debt Commitment Letters and (ii) give the Company prompt notice of any breach (or threatened breach asserted in writing) by any party of the Debt Commitment Letters of which Parent becomes aware or any termination thereof; provided that in no event shall Parent be under any obligation to disclose any information pursuant to which clauses (i) or (ii) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. In addition to the foregoing, Parent shall not, and shall cause its Subsidiaries not to, release or consent to the termination of the Debt Commitment Letters or of any individual lender under the Debt Commitment Letters, except (x) for assignments and replacements of an individual lender under the terms of, and only in connection with, the syndication of the Debt Financing Sources party thereto have committed under the Debt Commitment Letters, (y) for replacements of the Debt Commitment Letters with alternative financing commitments pursuant to provide to Merger SubSection 6.17(c), subject to the terms and conditions therein, debt financing (z) in connection with a reduction of the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing otherwise permitted pursuant to this Section 6.16.
(c) In the “Debt Commitment Letter”). As event that any portion of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter provided Letters (after giving effect to all applicable flex provisions), Parent shall use its reasonable best efforts to, as promptly as practicable following the Partnership pursuant occurrence of such event, (i) to this Section 4.6. Assuming the accuracy of the representations obtain alternative financing from alternative sources on terms and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds conditions not materially less favorable in the aggregate sufficient for to Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are than those expressly set forth in the Debt Commitment Letter. As Letters and in an amount at least equal to the amount (taking into account cash on hand and other sources of funds available to the Parent) sufficient to make the representation set forth in Section 4.16 as though made at the time of the date effectuation of such alternative financing (the “Alternate Debt Financing”), and (ii) obtain one or more new financing commitment letters with respect to such Alternate Debt Financing (the “New Debt Commitment Letters”), which New Debt Commitment Letters will replace the existing Debt Commitment Letters in whole or in part. Parent shall promptly provide the Company with a copy of any New Debt Commitment Letters (and any fee letter in connection therewith, which such fee letter may be redacted as provided in Section 4.16(a)). In the event that any New Debt Commitment Letters are obtained, (A) any reference in this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related Agreement to the “Debt Financing other than as expressly contained in Commitment Letters” will be deemed to include the Debt Commitment Letter and delivered Letters to the Partnership prior extent not superseded by the New Debt Commitment Letters at the time in question and any New Debt Commitment Letters to the date of extent then in effect, and (B) any reference in this Agreement. For Agreement to the avoidance of doubt, in no event shall “Debt Financing” means the receipt or availability of any funds or debt financing contemplated by or the Debt Commitment Letters as modified pursuant to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderforegoing.
Appears in 1 contract
Samples: Merger Agreement (Oclaro, Inc.)
Debt Financing. (a) Parent The Company has delivered to the Partnership SPAC a true true, complete and complete fully executed copy of a fully executed debt commitment letter dated (including all related exhibits, schedules, annexes, supplements and term sheets thereto and the fee letter executed in connection therewith, as each of the foregoing may be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived in each case, as permitted or contemplated by Sections 6.10(a), 6.10(c) and/or 8.09, from time to time after the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the “Debt Commitment Letter”) from the Debt Financing Sources party thereto have committed identified therein confirming their respective commitments to provide the DCL Beneficiary (or its applicable affiliate assignee or designee) the debt facilities referred to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing (the “Debt Commitment Letter”). As of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The As of the date hereof, the Debt Commitment Letter is in full force and effect and is the legal, valid, valid and binding and enforceable obligation of Parent the DCL Beneficiary and, to the Knowledge knowledge of Parentthe DCL Beneficiary, each of the other parties thereto, except as enforcement may be limited by and enforceable against the DCL Beneficiary and, to the knowledge of the DCL Beneficiary, the other parties thereto in accordance with its terms (subject to the Bankruptcy and Equity ExceptionEnforceability Exceptions). As of the date hereof, the Debt Commitment Letter has not been amended, restated, or otherwise modified or waived, and the respective commitments contained in the Debt Commitment Letter has not been withdrawn, rescinded or otherwise modified. All fees (if any) required to be paid under the Debt Commitment Letter on or prior to the date hereof have been paid in full.
(c) As of this Agreementthe date hereof, neither the DCL Beneficiary nor, to the knowledge of the DCL Beneficiary and/or the Company, the other parties thereto have breached any of the covenants or other obligations set forth in, or is in default under, the Debt Commitment Letter. As of the date hereof, to the knowledge of the DCL Beneficiary and/or the Company no event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute or result in a breach or default or breach by Parent on the part of the DCL Beneficiary or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term Letter.
(d) There are no conditions precedent directly or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions indirectly related to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that funding of the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those than as expressly set forth in the Debt Commitment LetterLetter (including the fee letter). As of Other than the date of this AgreementDebt Commitment Letter (including the fee letter), there are no side letters or other Contractscontracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contractsagreements, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub the Company or any of their Affiliates Affiliate thereof is a party related to the Debt Financing other than as expressly contained (except for customary non-disclosure agreements, non-reliance letters and similar written agreements, in each case which do not impact the conditionality or amount of the Debt Commitment Letter Financing). As of the date hereof, assuming the satisfaction of the conditions in Sections 11.01 and delivered 11.03, to the Partnership prior knowledge of the Company, the Company has no reason to believe that any of the conditions to the date of this Agreement. For Debt Financing will not be satisfied or that the avoidance of doubt, in no event shall Debt Financing will not be available to the receipt DCL Beneficiary (or availability of any funds its applicable affiliate assignee or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of designee) on the Sponsor Entities hereunderClosing Date.
Appears in 1 contract
Samples: Business Combination Agreement (GS Acquisition Holdings Corp II)
Debt Financing. (a) If Parent has delivered elects to pursue the Partnership a true and complete copy of a Debt Financing, Parent shall provide the Company with fully executed debt copies of any related engagement, commitment or fee letter dated as of the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant to which the Debt Financing Sources party thereto have committed to provide to Merger Sub, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing”) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of for the Debt Financing (in each case subject to customary redactions for “flex” provisions, fees and other economic amounts) promptly following their execution and in any event not later than 45 days following the “Debt Commitment Letter”). As earlier of (a) the later of (x) the date that any Outlet Purchase Agreement shall have been executed prior to the expiration of the date of this Agreement, the Debt Commitment Letter Sale Period and (y) in the form delivered event an Outlet Purchase Agreement shall have been executed prior to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none expiration of the obligations Sale Period and commitments contained in later is terminated, 45 days after the date Parent is notified of such Debt Commitment Letter termination and (b) the expiration of the Sale Period if no Outlet Purchase Agreement shall have been withdrawnexecuted prior thereto; provided, terminated further, that without limitation of the foregoing, Parent shall not agree to, permit or rescinded in enter into, any respect and no such withdrawalamendment, termination or rescission is contemplated. Neither Parentwaiver, Merger Sub nor any of their Affiliates has entered into any agreement, side letter supplement or other arrangement modification to the terms of the letters relating to the Debt Financing other than as set forth in without the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy prior written consent of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required Company (such consent not to be paid by Parent unreasonably withheld, delayed or Merger Sub in connection with conditioned) (it being understood and agreed that it would be reasonable for the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legalCompany to withhold or otherwise delay or condition such consent if any such amendments, validwaivers, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with supplements or without notice, lapse of time or both, would or modifications would reasonably be expected to constitute a default cause the anticipated Closing Date to occur past the End Date) if such amendment, waiver, supplement or breach by Parent other modification would reasonably be expected to (x) impose any new or additional conditions precedent or materially or unreasonably expand any of its Subsidiaries or, existing condition to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount funding of the Debt Financing will not contained in such letters, or (y) otherwise materially modify or expand any of the Financing Information required to be available on delivered by the Closing Date. The only conditions precedent Company (any such amendment, waiver, supplement or other contingencies related modification, an “Adverse Amendment”); provided, further, that Parent shall be permitted to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreementagree, there are no side letters permit or enter into any amendment, waiver, supplement or other Contracts, arrangements or understandings (whether oral or written and whether or modification that does not legally binding) or commitments constitute an Adverse Amendment. Parent shall promptly deliver to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability Company copies of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderAdverse Amendment.
Appears in 1 contract
Samples: Merger Agreement (Sears Hometown & Outlet Stores, Inc.)
Debt Financing. (a) Parent has delivered will not, and will not permit any other Person to, terminate, amend, modify or supplement (or consent or agree to the Partnership termination, amendment, modification or supplementing of) in any respect the terms or conditions of any Debt Financing Documents or the Equity Commitment Letter, without the prior written consent of Loews, except to amend or modify in a true manner more favorable to Parent, the Equity Investor or their Affiliates the interest rates relating to the Debt Financing or the terms of the covenants to be in effect following consummation of the Contemplated Transactions; provided, that in no event shall any such amendments, modifications or supplements relieve the Lenders from their obligations under the Debt Financing Documents to provide the Debt Financing or relieve the Equity Investor from its obligations under the Equity Commitment Letter to provide the Equity Financing (or limit Parent’s rights under the Debt Financing Documents or the Equity Financing Documents to require them to do so), in each case on the terms set forth in the Debt Financing Documents and complete copy of a Equity Commitment Letter without giving effect to any such amendment, modification or supplement. Parent has fully executed debt paid or caused to be paid any and all commitment letter dated fees or other fees required by such Debt Financing Documents to be paid as of the date hereof (and will fully pay or cause to be paid when due any such fees after the date hereof, together with all schedules, exhibits, annexes and term sheets attached thereto, pursuant ). Parent will use commercially reasonable efforts to which obtain the Debt Financing Sources party thereto have committed to provide to Merger Subor, in the event it is unavailable, substitute debt financing, and, subject to the terms satisfaction of all of the conditions to Parent’s obligation to close set forth in Article 7 and conditions thereinto the following proviso, debt financing Parent will draw down the Bridge Loans (as defined in the aggregate amount set forth therein Commitment Letter) (if adequate funding has not been obtained through the “Debt Financing”issuance of Senior Subordinated Notes (as defined in the Engagement Letter) with only fee amounts and other customary commercially sensitive terms redacted, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount senior portion of the Debt Financing (with only such changes as the “Debt Commitment Letter”Lenders may require without Parent’s consent (but which may require consultation with Parent) pursuant to the terms of clauses (a). As , (b), (c), (d) or (e) of the date fourth paragraph under the heading “General” in the Fee Letter or the third from the last sentence of that paragraph ), in each case, if available, as necessary to enable the Debt Financing to be funded on September 28, 2004; provided, however, that notwithstanding any other provision of this Agreement, Parent shall in no event be obligated (i) to draw down the Bridge Loans (as defined in the Commitment Letter) or close with any changes pursuant to clauses (a), (b), (c) (d) or (e) of the fourth paragraph under the heading “General” in the Fee Letter or the third from the last sentence of that paragraph to enable the Debt Commitment Letter in the form delivered Financing to the Partnership has not been amended or modifiedbe funded before September 28, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn2004, terminated or rescinded in (ii) waive any respect and no such withdrawalcondition to its obligation to close pursuant to Article 7, termination or rescission is contemplated. Neither Parent, Merger Sub nor (iii) provide any of their Affiliates has entered into consent to any agreement, side letter or other arrangement relating changes to the Debt Financing other than as set forth (including any consent pursuant to the fourth paragraph under the heading “General” in the Fee Letter) or (iv) accept any substitute debt financing on terms (taken in the aggregate) less favorable to Parent than the Debt Financing would have been (assuming no draw of the Bridge Loans or waiver or consent referred to in clauses (i), (ii) or (iii), above). Parent’s acceptance, at the Closing, of equity contributions from third parties in substitution for a portion of the equity contribution called for by the Equity Commitment Letter provided to shall not constitute a modification of the Partnership pursuant to Equity Commitment Letter prohibited by this Section 4.6. Assuming 6.7(a), provided that (i) the accuracy Equity Investor shall not be relieved of any of its obligations under the representations Equity Commitment Letter until the Closing occurs and warranties set forth in Section 3.2(a(ii) and compliance by such substitution does not affect the Partnership with Sections 5.2(b)(i) and 5.13, availability of the Debt Financing, when funded in accordance with the Debt Commitment Letter, together with cash on hand of Parent and its Subsidiaries, will provide Parent and Merger Sub with sources of immediately available funds in the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions.
(b) The Debt Commitment Letter is in full force and effect and is the legalParent will not permit Equity Investor to hold less than a majority of its outstanding equity interest or less than a majority of its outstanding voting securities. For greater certainty, valid, binding and enforceable obligation Parent will not permit any Person or Persons other than Equity Investor or Parent’s directors or officers to control any decision of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by concerning this Agreement and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.2 and the performance by the Partnership of its obligations under this Agreement, Parent does not have any reason to believe that any party to the Debt Commitment Letter will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it, that the conditions to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of this Agreement, there are no side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings (whether oral or written and whether or not legally binding) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunderFinancing.
Appears in 1 contract
Samples: Stock Purchase Agreement (LCE AcquisitionSub, Inc.)
Debt Financing. (a) Parent has delivered Section 5.12 of the MCC Disclosure Letter sets forth a complete and accurate copy of the executed amendment to the Partnership a true and complete copy of a fully executed debt commitment letter dated as of the date hereofMCC Credit Agreement, together with all related schedules, exhibitsexhibits and annexes attached thereto (collectively, annexes and term sheets attached theretothe “MCC Credit Agreement Amendment”), pursuant to which the Debt Financing Sources party thereto Lenders have committed to provide to Merger Sub, subject to lend the terms and conditions therein, debt financing in the aggregate amount amounts set forth therein to MCC (or to the Company or a Company Subsidiary) for the purpose of financing the amounts payable by MCC and its Subsidiaries under Article II and Article III hereof, the extension of the maturity date of existing Indebtedness of MCC under the MCC Credit Agreement and the repayment or refinancing of certain outstanding Indebtedness of the Company and the Company Subsidiaries in an aggregate principal amount of not less than $500,000,000, which aggregate principal amount consists of $187,500,000 originally made available under the MCC Credit Agreement plus an additional amount of not less than $312,500,000 (collectively, the “Debt Financing”) with only fee amounts and ). Except as set forth in the MCC Credit Agreement Amendment, there are no conditions precedent to the respective obligations of the Lenders to fund the Debt Financing. Other than the MCC Credit Agreement Amendment, there are no other customary commercially sensitive terms redactedagreements, none of which redacted provisions could affect side letters or arrangements that would permit the conditionality, enforceability, availability or aggregate principal Lenders to reduce the amount of the Debt Financing (or that would otherwise affect the “Debt Commitment Letter”). As availability of the date of this Agreement, the Debt Commitment Letter in the form delivered to the Partnership has not been amended or modified, no such amendment or modification is contemplated and none of the obligations and commitments contained in such Debt Commitment Letter have been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Neither Parent, Merger Sub nor any of their Affiliates has entered into any agreement, side letter or other arrangement relating to the Debt Financing other than as set forth in the Debt Commitment Letter provided to the Partnership pursuant to this Section 4.6. Assuming the accuracy of the representations and warranties set forth in Section 3.2(a) and compliance by the Partnership with Sections 5.2(b)(i) and 5.13, the Debt Financing. Each of the MCC Credit Agreement and the MCC Credit Agreement Amendment has been duly executed and delivered by, when funded in accordance with the Debt Commitment Letterand is a legal, together with cash on hand valid and binding obligation of Parent MCC and its SubsidiariesAffiliates that are parties thereto, will provide Parent and Merger Sub with sources to the Knowledge of immediately available funds MCC, all other parties thereto, except as the enforceability thereof may be limited by applicable bankruptcy, insolvency, moratorium, reorganization, fraudulent transfer or similar laws in effect which affect the aggregate sufficient for Parent and Merger Sub to pay the aggregate Merger Consideration and any other amount required to be paid by Parent enforcement of creditors’ rights generally or Merger Sub in connection with the consummation of the Transactions.
equitable principles or remedies (b) whether considered at law or equity). The Debt Commitment Letter MCC Credit Agreement is in full force and effect and is the legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each of the other parties thereto, except as enforcement may be limited by and subject to the Bankruptcy and Equity Exception. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach by Parent or any of its Subsidiaries or, to the Knowledge of Parent, any other party thereto, of any term of the Debt Commitment Letter. As of the date of this Agreement, assuming the upon satisfaction of the conditions set forth in Sections 2(b)(2), 2(b)(3) and 2(b)(4) of the MCC Credit Agreement Amendment, the MCC Credit Agreement Amendment will be in full force and effect, and neither the MCC Credit Agreement nor the MCC Credit Agreement Amendment has been withdrawn or terminated or otherwise amended or modified in any respect, except as permitted by Section 6.1 6.10. All commitment and other fees required to be paid under the MCC Credit Agreement or the MCC Credit Agreement Amendment on or prior to the date hereof have been paid and, as of the date hereof, to the Knowledge of MCC, there is no fact or occurrence existing that would make any of the statements (including any representations or warranties) set forth in the MCC Credit Agreement or the MCC Credit Agreement Amendment inaccurate. Neither MCC nor any of its Affiliates nor, to the Knowledge of MCC, any other party to the MCC Credit Agreement or the MCC Credit Agreement Amendment, is in material breach or violation of, or material default under, the MCC Credit Agreement or the MCC Credit Agreement Amendment.
(b) Assuming the satisfaction of the conditions in Section 6.2 7.1 and 7.3 and no material breach or default by the Company or DLJ hereunder, to the Knowledge of MCC, there is no fact or occurrence as of the date hereof that would cause the conditions to funding of the Debt Financing as set forth in the MCC Credit Agreement and the performance by MCC Credit Agreement Amendment not to be satisfied at or before the Partnership of its obligations under this AgreementClosing, Parent does not have any and MCC has no reason to believe that any party to the Debt Commitment Letter it will be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required closing to be satisfied by it, that it contained in the MCC Credit Agreement or the MCC Credit Agreement Amendment. Assuming the satisfaction of the conditions in Section 7.1 and 7.3, on or before the Closing Date MCC will have, (i) sufficient cash, available lines of credit or other sources of immediately available funds to the Debt Financing in the Debt Commitment Letter will not otherwise be satisfied or that the full amount consummate all of the Debt Financing will not be available on the Closing Date. The only conditions precedent or other contingencies related to the obligations of the Debt Financing Sources party to the Debt Commitment Letter to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter. As of the date of transactions contemplated by this Agreement, there are no side letters including, without limitation, the payment of the amounts payable by MCC and its Subsidiaries under Article II and Article III hereof and the repayment or other Contractsrefinancing of any outstanding Indebtedness of the Company and the Company Subsidiaries and the payment of any fees or expenses associated with any of the foregoing, arrangements or understandings and (whether oral or written ii) the resources and whether or not legally binding) or commitments to enter into side letters or other Contracts, arrangements or understandings capabilities (whether oral or written financial and whether or not legally bindingotherwise) to which Parent, Merger Sub or any of their Affiliates is a party related to the Debt Financing other than as expressly contained in the Debt Commitment Letter and delivered to the Partnership prior to the date of perform its obligations under this Agreement. For the avoidance of doubt, in no event shall the receipt or availability of any funds or financing by or to Parent, Merger Sub or any Affiliate of Parent or Merger Sub be a condition to any obligations of the Sponsor Entities hereunder.
Appears in 1 contract
Samples: Merger and Stock Purchase Agreement (MULTI COLOR Corp)
