Debt Financing. (a) Parent shall use its reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) comply with its obligations under the Debt Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at or prior to the Closing Date), (iv) satisfy (or seek waiver of) on a timely basis all conditions applicable to Parent in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds of the Debt Financing in accordance with the foregoing clause (i) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expenses.
Appears in 1 contract
Debt Financing. (a) Parent Buyer shall use its reasonable best efforts efforts, and shall cause each of its Subsidiaries to take use its reasonable best efforts, to take, or cause to be taken taken, all actions actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange obtain funds sufficient to fund the Financing Amounts no later than the Closing Date, including using reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Debt Financing at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with on the terms and subject only to the conditions thereofdescribed in the Debt Commitment Letter, including by (iii) comply with its obligations under maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into definitive agreements with respect thereto on to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in therein (including, as necessary, the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions “flex” provisions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at any related fee letter) on or prior to the Closing Date), (iviii) satisfy (or seek waiver of) satisfying on a timely basis all conditions applicable to Parent in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfiedand the Definitive Agreements within Buyer’s control and complying with its obligations thereunder and (iv) enforcing its rights under the Debt Commitment Letter, cause in each case in a timely and diligent manner. (b) In the event any portion of the Financing Sources to fund contemplated by the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds Commitment Letter becomes unavailable regardless of the Debt reason therefor, and such amount of Financing in accordance with is necessary to finance the foregoing clause Financing Amounts, (i) through Buyer shall promptly notify Seller in writing of such unavailability and the reason therefor and (vi)ii) Buyer shall use its reasonable best efforts, and shall not be required cause each of its Subsidiaries to enter into definitive agreements use their reasonable best efforts, to obtain as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with respect thereto, if cash and the cash or other sources of immediately funds available funds Parent has or will have prior to Buyer at the Closing to pay the Financing Amounts and that do not include any conditions to the Closingconsummation of such alternative financing that, includingtaken as a whole, without limitationare materially more onerous to the Buyer than the conditions set forth in the Debt Commitment Letter. To the extent requested in writing by Seller from time to time, cash and cash equivalents (including short-term marketable securities) Buyer shall keep Seller informed on a reasonably current basis of the Company status of its efforts to arrange and consummate the net proceeds Financing. Without limiting the generality of the foregoing, Buyer shall promptly notify Seller in writing if there exists any actual or threatened material breach, default, repudiation, cancellation or termination by any party to the Debt Commitment Letter or any Definitive Agreement and a copy of any Substitute Financing) are in an amount sufficient written notice or other written communication from any Financing Party with respect to enable it any actual material breach, default, repudiation, cancellation or termination by any party to the Debt Commitment Letter or any Definitive Agreement of any provision thereof. The foregoing notwithstanding, compliance by Buyer with this Section 5.14 shall not relieve Buyer of its obligations to consummate the Merger Contemplated Transactions whether or not the Financing is available. (c) None of Buyer nor any of its Subsidiaries shall (without the prior written consent of Seller, such consent not to be unreasonably withheld, delayed or conditioned) consent or agree to any amendment, replacement, supplement, termination or modification to, or any waiver of any provision under, the Debt Commitment Letter or the Definitive Agreements if such amendment, replacement, supplement, modification or waiver (i) decreases the aggregate amount of the Financing to an amount that would be less than an amount that would be required, when taken together with Cash held by Buyer and the Sale Entities on the Closing Date and the other transactions contemplated hereby and sources of funds available to Buyer on the Closing Date, to pay any related fees and expenses.the Financing Amounts, (ii) could
Appears in 1 contract
Debt Financing. (a) Parent and HGV Borrower shall use its reasonable best efforts to take take, or cause to be taken taken, all actions and to do, or cause to be done, as promptly as possible, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Committed Debt Financing at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with on the terms and subject to the conditions thereof, (ii) comply with its obligations under described in the Debt Commitment Letter, including using reasonable best efforts to, as promptly as possible, (iiia) satisfy on a timely basis all conditions applicable to HGV Borrower, (b) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in contemplated by the Debt Commitment Letter (provided that such including any related flex provisions) or on other terms that would not reasonably be expected to materially delay or hinder (taking into account the Acceptance Time expected timing of the Marketing Period) or adversely impact affect the ability of Parent HGV Borrower, from a conditionality and enforceability perspective, to obtain consummate the proceeds of transactions contemplated hereby and (c) consummate the Committed Debt Financing at or prior to the Closing Date)Closing. Parent shall give the Seller Representative prompt notice (and in any event no later than three (3) Business Days following) (i) of any actual breach or default under the Debt Commitment Letter of which Parent or HGV Borrower becomes aware and (ii) of any termination, (iv) satisfy (repudiation, rescission, cancellation or seek waiver of) expiration of the Debt Commitment Letter. Parent shall keep the Company and the Seller Representative informed on a timely reasonably current basis all in reasonable detail of the status of Parent’s efforts to arrange the Committed Debt Financing or Alternative Financing and provide to the Company executed copies of the definitive documents related to the Committed Debt Financing or Alternative Financing. If any portion of the Committed Debt Financing becomes unavailable on the terms and conditions applicable to Parent contemplated in the Debt Commitment Letter, Parent shall use reasonable best efforts to obtain alternative financing, including from alternative sources on Commercially Reasonable Terms (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of this Section 6.17(a) shall be applicable to the Alternative Financing and such Alternative Financing shall not impose any new or additional condition or otherwise expand any condition to draw and other terms that would reasonably be expected to affect the availability thereof at the Closing. Parent and HGV Borrower shall (1) comply in all material respects with the Debt Commitment Letter (or and each definitive agreements entered into agreement with respect to thereto (collectively, with the Debt Commitment Letter, the “Debt Documents”), (v2) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds of the Debt Financing in accordance with the foregoing clause (i) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expenses.upon
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hilton Grand Vacations Inc.)
Debt Financing. (a) Parent The Purchaser Parties shall use its their reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds Debt Financing on the terms and conditions set forth in the Commitment Letters (or terms, including with respect to the conditionality thereof, not materially less favorable to the Purchaser Parties than the terms and conditions in the Commitment Letters), including by (i) maintaining in effect the Commitment Letters and negotiating definitive agreements (the “Debt Financing Agreements”) on such terms and conditions, (ii) ensuring the accuracy of all representations and warranties of the Purchaser Owner and its Subsidiaries set forth in the Commitment Letters and the Debt Financing Agreements, (iii) complying with all covenants and agreements of the Purchaser Owner and its Subsidiaries set forth in the Commitment Letters and the Debt Financing Agreements, (iv) satisfying on a timely basis all conditions applicable to the Purchaser Owner and its Subsidiaries set forth in the Commitment Letters and the Debt Financing Agreements that are within their control and (v) consummating the Debt Financing at or prior to the Closing. In the event that the conditions to the Purchaser Parties’ obligations under this Agreement have been satisfied or waived (or will be satisfied as of the Closing), including using its the Purchaser Parties shall, and shall cause their Subsidiaries to, use their reasonable best efforts to: (i) maintain in effect to cause the Lenders to fund on the Closing Date the Debt Commitment Letter in accordance with Financing required to consummate the terms transactions contemplated by this Agreement and subject to the conditions thereof, (ii) comply with its obligations otherwise enforce their rights under the Debt Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in Letters or the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms Financing Agreements. The Purchaser Parties will furnish correct and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds complete copies of the Debt Financing at or prior Agreements to the Closing Date), (iv) satisfy (or seek waiver of) on a timely basis all conditions applicable to Parent in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds of the Debt Financing in accordance with the foregoing clause (i) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expensesSellers promptly upon execution.
Appears in 1 contract
Samples: Acquisition Agreement (Savient Pharmaceuticals Inc)
Debt Financing. (a) Parent shall use its reasonable best efforts to take or cause to be taken all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain the proceeds of the Debt Financing at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) comply with its obligations under the Debt Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at or prior to the Closing Date), (iv) satisfy (or seek waiver of) on a timely basis all conditions applicable to Parent in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds of the Debt Financing in accordance with the foregoing clause (i) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expenses.. CONFIDENTIAL
Appears in 1 contract
Debt Financing. (ai) Each of Parent and Merger Sub shall use its their respective reasonable best efforts to take take, or cause to be taken 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 Debt Financing on the terms and conditions described in the Debt Financing at or prior to the ClosingCommitment Letters, including using its reasonable best efforts to: , as promptly as reasonably practicable, (i) maintain in full force and effect the Debt Commitment Letter in accordance with Letters subject to the terms and subject conditions thereof (including obtaining an extension of the termination of any Debt Commitment Letter (on the same terms and conditions contained therein, including with respect to the conditions thereofset forth therein, except for such amendments or modifications that would be permitted in connection with any Alternative Financing) prior to such termination to the extent such Debt Commitment Letter would otherwise terminate prior to the Outside Date), (ii) comply with its obligations under satisfy, or cause to be satisfied, on a timely basis (or, if applicable, obtaining waivers thereof), all conditions to Parent and Merger Sub obtaining the Debt Financing set forth therein (including the payment of any fees required as a condition to the Debt Financing) required to pay the applicable portion of the Required Amount contemplated by the Debt Commitment LetterLetters that are to be satisfied by Parent or Merger Sub to the extent such conditions are applicable to, and within the control of, Parent or Merger Sub, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and conditions contemplated by the Debt Commitment Letters (including any related flex provisions (to the extent such flex provisions are exercised in accordance with the terms thereof)) or on other terms that are (A) reasonably acceptable to the Debt Financing Sources and (B) in the aggregate not materially less favorable, taken as a whole, to Parent (including with respect to conditions set forth in the Debt Commitment Letters) so that such agreements are in effect no later than the Expiration Time, (iv) prepare, on a timely basis, the necessary offering circulars, private placement memoranda or other offering documents or marketing materials with respect to the Debt Financing, (v) subject to Section 6.16(b)(iii), enforce its rights under the Debt Commitment Letters, and (vi) consummate the Debt Financing in an amount required to pay the applicable portion of the Required Amount set forth in the Debt Commitment Letters, including using its reasonable best efforts to cause the Debt Financing Sources to provide the Debt Financing at or prior to the Expiration Time, to the extent the proceeds thereof are required for the Financing Purposes. Any material breach by Parent or Merger Sub of the Debt Commitment Letter or other Debt Document shall be deemed to be a breach by Parent or Merger Sub of this Section 6.16(b). Parent and Merger Sub shall give the Company written notice as promptly as reasonably practicable (and in any event within three Business Days) after Parent’s Knowledge (A) of any material breach or default on the part of any party to any Debt Commitment Letter or other Debt Document of which Parent or Merger Sub becomes aware, (B) if and when Parent and/or Merger Sub believes in good faith that it will not be able to obtain the Debt Financing contemplated by the Debt Commitment Letters in an amount sufficient to consummate the transactions contemplated by this Agreement, (C) of the receipt by Parent or Merger Sub of any written notice or other written communication from any Person with respect to (1) any actual or asserted material breach or default or termination or repudiation by any party to the Debt Commitment Letters or other Debt Document or (2) material dispute or disagreement between or among any parties to the Debt Commitment Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Debt Financing or Debt Documents) that would reasonably be expected to prevent or materially delay the Closing or make the funding of the Debt Financing required to pay the applicable portion of the Required Amount contemplated by the Debt Commitment Letters materially less likely to occur and (D) of any expiration or termination of the Debt Commitment Letters or other Debt Document. As soon as reasonably practicable, Parent and/or Merger Sub shall provide any information available to Parent and/or Merger Sub, as applicable, and reasonably requested by the Company relating to any circumstance referred to in clause (A), (B), (C) or (D) of the immediately preceding sentence. Without limiting the foregoing, Parent and Merger Sub shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of their efforts to arrange the Debt Financing and provide to the Company executed copies of the definitive documents related to the Debt Financing (including, for the avoidance of doubt, any amendments or modifications thereto or to the Alternative Financing as described below) (provided that any fee letters, engagement letters or other agreements that, in accordance with customary practice, are confidential by their terms, and that do not affect the conditionality or reduce the committed amount of the Debt Financing, may be redacted in a customary manner so as not to disclose such terms that are so confidential). If any portion of the Debt Financing becomes unavailable (whether through expiration, termination or otherwise) on the terms and conditions contemplated in the Debt Commitment Letters (after taking into account flex terms) (unless such unavailability is due to the failure of a condition to the consummation of the Debt Financing being primarily caused by the breach of any representation, warranty, covenant or agreement of the Company or any of its Subsidiaries set forth in this Agreement and as a result of which alternative financing sources are not otherwise then available), Parent and Merger Sub shall use their respective reasonable best efforts to arrange and obtain as promptly as reasonably practicable following the occurrence of such event, alternative financing, including from alternative sources, on terms that in the aggregate are not materially less favorable to Parent and Merger Sub (including with respect to any conditions to the Debt Financing) than the Debt Financing contemplated by the Debt Commitment Letters and in an amount (when taken together with any remaining available portion of the Debt Financing (if any) and the Equity Financing), is sufficient to enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement in accordance with its terms (“Alternative Financing”), and the provisions of this Section 6.16(b) shall be applicable to the Alternative Financing, and for purposes of this Agreement, including without limitation, Section 6.15 and this Section 6.16(b), all references to the Debt Financing shall be deemed to refer to such Alternative Financing (in lieu of the Debt Financing replaced thereby) and all references to the Debt Commitment Letters or other Debt Documents shall instead include the applicable documents for the Alternative Financing (in lieu of the Debt Commitment Papers and the other Debt Documents replaced thereby). Parent and Merger Sub shall (1) comply in all material respects with the Debt Commitment Letters and each definitive agreement entered into with respect thereto on the terms and conditions contained in the Debt Commitment Letter Papers or as promptly as practicable after the date hereofotherwise may be agreed (collectively, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in with the Debt Commitment Letter Letters, the “Debt Documents”), (provided that such 2) subject to Section 6.16(b)(iii), enforce their rights under the Debt Commitment Letters and other terms would not reasonably be expected Debt Documents, including using its reasonable best efforts to delay or hinder cause the Acceptance Time or adversely impact the ability of Parent Debt Financing Sources to obtain the proceeds of fund the Debt Financing at or prior to the Closing Date)subject to the terms and conditions thereof and (3) after the date hereof, (iv) satisfy (not permit, without the prior written consent of the Company, any material amendment or seek modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of) on a timely basis all conditions applicable of any provision or remedy under, the Debt Commitment Letters or other Debt Document or any fee letter referred to Parent in the Debt Commitment Letter Letters that (individually or definitive agreements entered into in the aggregate with respect to any other amendments, modifications or waivers) would (x) reduce the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining aggregate amount of the Debt Financing prior thereunder (including by changing the amount of fees to be paid or original issue discount thereof), if after giving effect to such reduction, the anticipated date on which all amount of Debt Financing and Equity Financing will be less in the aggregate than an amount necessary (taking into account any corresponding increase in any other portion of the Offer Conditions have been satisfied Financing and any Alternative Financing) in order for the Parent and Merger Sub to fund the amounts required to be funded at Closing pursuant to this Agreement, or waived(y) impose any new or additional condition, or otherwise amend, modify or expand any condition, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfied, cause the Financing Sources to fund the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds receipt of any portion of the Debt Financing in a manner that would reasonably be expected to (I) materially delay or prevent the Closing Date, (II) make the funding of any portion of the Debt Financing (or satisfaction of any condition to obtaining any portion of the Debt Financing) materially less likely to occur, or (III) materially adversely impact (a) the ability of Parent or Merger Sub to enforce their respective rights against any other party to the Debt Commitment Letter or other Debt Document, (b) the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or (c) the likelihood of the consummation of the transactions contemplated hereby; provided, however, that, for the avoidance of doubt, Parent and Merger Sub each may amend or modify the Debt Commitment Letters (x) in accordance with the foregoing clause market flex provisions thereof, (iy) through to extend the expiration date thereof, together with any related amendments or modifications to the Debt Commitment Letters that would be permitted in connection with any Alternative Financing, or (viz) to add lenders, arrangers, bookrunners, syndication agents, or similar entities and to grant to such persons such approval rights as are customarily granted to additional lenders, arrangers, bookrunners, syndication agents or similar entities. Parent and Merger Sub shall provide notice to the Company (which may be by phone or email), as promptly as reasonably practicable, upon receiving the Debt Financing. Notwithstanding anything to the contrary in this Agreement, compliance by Parent and Merger Sub with this Section 6.16(b) shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources relieve Parent and Merger Sub of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it their respective obligation to consummate the Merger and the other transactions contemplated hereby by this Agreement, whether or not the Debt Financing or Alternative Financing is available. Parent shall, as promptly as reasonably practicable, deliver to the Company true and complete copies of all material agreements pursuant to pay which any such Alternative Financing source shall have committed to provide Parent and/or Merger Sub with any portion of such Alternative Financing (subject in respect of any related fees and expensesfee letter to redaction in a customary manner).
Appears in 1 contract
Debt Financing. (a) Parent Purchaser shall, and shall cause its Affiliates to, use its reasonable best efforts to take take, or cause to be taken taken, all actions and to appropriate action, do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be required, to arrange the Financing as promptly as reasonably practicable on the terms and obtain subject only to the proceeds conditions contained in the Financing Letters and, if applicable, the Interim Facility Letter (or any replacement commitments obtained by Purchaser in compliance with this Section 7.08), including, in the case of the Debt Financing, to (i) satisfy, and cause its Affiliates to satisfy, on a timely basis all conditions applicable to Purchaser or its Affiliates contained in the Debt Commitment Letter or, if applicable, the Interim Facility Letter (or any replacement commitments obtained by Purchaser in compliance with this Section 7.08) and (ii) consummate the Debt Financing contemplated by the Debt Commitment Letter or, if applicable, the Interim Facility Letter (or any replacement commitments obtained by Purchaser in compliance with this Section 7.08) at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect to cause the financial institutions providing the Debt Commitment Letter in accordance with the terms and subject Financing to the conditions thereof, (ii) comply with its obligations under fund the Debt Commitment LetterFinancing (including by taking enforcement action to cause such financial institutions to fund the Debt Financing). Purchaser shall, (iii) negotiate and enter into definitive agreements with respect thereto on shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that is reasonably likely to result in the terms and failure of any of the conditions contained in the Debt Commitment Letter as promptly as practicable after Financing Letters and the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at or prior to the Closing Date), (iv) satisfy (or seek waiver of) on a timely basis all conditions applicable to Parent in the Debt Commitment Interim Facility Letter (or any replacement commitments obtained by Purchaser in compliance with this Section 7.08) or in any definitive agreements entered into with respect agreement related to the Debt Commitment Letter)Financing. Purchaser shall draw, (v) prepare and shall use its reasonable best efforts to cause the information memorandaFinancing Lenders to fund at Closing, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) Interim Facility Letter in the event that all conditions in the definitive facilities contemplated by the Debt Commitment Letter have not been satisfied, cause executed by the Purchaser and the Financing Sources to fund the Debt Financing at the Closing; provided, that, notwithstanding anything lenders on or prior to the contrary herein, Parent shall not be required to arrange and obtain the proceeds of the Debt Financing in accordance with the foregoing clause date that is three (i3) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have business days prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of . Purchaser shall cause the Company and Equity Funds to fund the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expensesEquity Financing at Closing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Bristol Myers Squibb Co)
Debt Financing. (ai) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its respective reasonable best efforts to take obtain the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter, after giving effect to the “market flex” terms in the fee letter referred to therein, should such “market flex” terms be required (or cause on terms which would not be reasonably expected to be taken all actions and to dodelay or prevent the Closing (taking into account the expected timing of the Marketing Period), or cause to be done, all things reasonably necessary, proper or advisable to arrange and obtain make the proceeds funding of the Debt Financing at or prior less likely to the Closingoccur), including using and use its respective reasonable best efforts to: to (iA) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) comply with its obligations under the Debt Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto to the Debt Commitment Letter on the terms and conditions contained in the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at or prior to the Closing Date), (iv) satisfy (or seek waiver of) on a timely basis all conditions applicable to Parent set forth in the Debt Commitment Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Debt Financing less likely to occur), (B) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) all conditions applicable to Parent and Merger Sub set forth in such definitive agreements entered into with respect to that are within their reasonable control, and (C) consummate the Debt Financing contemplated by the Debt Commitment Letter), Letter 49 (vor such lesser amount as may be required to consummate the transactions contemplated by this Agreement) prepare the information memoranda, preliminary and final offering memoranda at or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in Closing. In the event that all conditions in the Debt Commitment Letter (other than the availability of funding of any of the Equity Financing) have been satisfied or upon funding will be satisfied, each of Parent and Merger Sub shall use its reasonable best efforts to cause such lenders and the other Persons providing such Debt Financing Sources to fund on the Closing Date the Debt Financing at required to consummate the Closing; provided, that, notwithstanding transactions contemplated by this Agreement and otherwise enforce its rights under the Debt Commitment Letter. Notwithstanding anything to the contrary hereinin this Agreement, neither Parent nor Merger Sub shall not be required to arrange and obtain the proceeds of the Debt Financing in accordance with the foregoing clause (i) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents first (including short-term marketable securities1st) Business Day after the final day of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expensesMarketing Period.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Commercial Lines Inc.)
Debt Financing. (a) Parent Buyer shall use its reasonable best efforts efforts, and shall cause each of its Subsidiaries to take use its reasonable best efforts, to take, or cause to be taken taken, all actions actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange obtain funds sufficient to fund the Financing Amounts no later than the Closing Date, including using reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or 66 4894-6761-6617 v.11 advisable to obtain the proceeds of the Debt Financing at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with on the terms and subject only to the conditions thereofdescribed in the Debt Commitment Letter, including by (iii) comply with its obligations under maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into definitive agreements with respect thereto on to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in therein (including, as necessary, the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions “flex” provisions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at any related fee letter) on or prior to the Closing Date), (iviii) satisfy (or seek waiver of) satisfying on a timely basis all conditions applicable to Parent in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfiedand the Definitive Agreements within Buyer’s control and complying with its obligations thereunder and (iv) enforcing its rights under the Debt Commitment Letter, cause in each case in a timely and diligent manner. (b) In the event any portion of the Financing Sources to fund contemplated by the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds Commitment Letter becomes unavailable regardless of the Debt reason therefor, and such amount of Financing in accordance with is necessary to finance the foregoing clause Financing Amounts, (i) through Buyer shall promptly notify Seller in writing of such unavailability and the reason therefor and (vi)ii) Buyer shall use its reasonable best efforts, and shall not be required cause each of its Subsidiaries to enter into definitive agreements use their reasonable best efforts, to obtain as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with respect thereto, if cash and the cash or other sources of immediately funds available funds Parent has or will have prior to Buyer at the Closing to pay the Financing Amounts and that do not include any conditions to the Closingconsummation of such alternative financing that, includingtaken as a whole, without limitationare materially more onerous to the Buyer than the conditions set forth in the Debt Commitment Letter. To the extent requested in writing by Seller from time to time, cash and cash equivalents (including short-term marketable securities) Buyer shall keep Seller informed on a reasonably current basis of the Company status of its efforts to arrange and consummate the net proceeds Financing. Without limiting the generality of the foregoing, Buyer shall promptly notify Seller in writing if there exists any actual or threatened material breach, default, repudiation, cancellation or termination by any party to the Debt Commitment Letter or any Definitive Agreement and a copy of any Substitute Financing) are in an amount sufficient written notice or other written communication from any Financing Party with respect to enable it any actual material breach, default, repudiation, cancellation or termination by any party to the Debt Commitment Letter or any Definitive Agreement of any provision thereof. The foregoing notwithstanding, compliance by Buyer with this Section 5.14 shall not relieve Buyer of its obligations to consummate the Merger Contemplated Transactions whether or not the Financing is available. (c) None of Buyer nor any of its Subsidiaries shall (without the prior written consent of Seller, such consent not to be unreasonably withheld, delayed or conditioned) consent or agree to any amendment, replacement, supplement, termination or modification to, or any waiver of any provision under, the Debt Commitment Letter or the Definitive Agreements if such amendment, replacement, supplement, modification or waiver (i) decreases the aggregate amount of the Financing to an amount that would be less than an amount that would be required, when taken together with Cash held by Buyer and the Sale Entities on the Closing Date and the other transactions contemplated hereby and sources of funds available to Buyer on the Closing Date, to pay the Financing Amounts, (ii) could reasonably be expected to prevent, materially delay or materially impede the consummation of the Contemplated Transactions, (iii) materially and adversely impacts the ability of Buyer to enforce its rights against the other parties to the Debt Commitment Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, or (iv) adds new (or materially and adversely modifies any related fees and expenses.existing) conditions to the consummation of all or any portion of the Financing; provided that Buyer may amend, replace, supplement and/or modify the Debt
Appears in 1 contract
Debt Financing. (a) Parent Buyer shall use its reasonable best efforts efforts, and shall cause each of its Subsidiaries to take use its reasonable best efforts, to take, or cause to be taken taken, all actions actions, and to do, or cause to be done, all things reasonably necessary, proper or advisable to arrange obtain funds sufficient to fund the Financing Amounts no later than the Closing Date, including using reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Debt Financing at or prior to the Closing, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with on the terms and subject only to the conditions thereofdescribed in the Debt Commitment Letter, including by (iii) comply with its obligations under maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into definitive agreements with respect thereto on to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in therein (including, as necessary, the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions “flex” provisions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at any related fee letter) on or prior to the Closing Date), (iviii) satisfy (or seek waiver of) satisfying on a timely basis all conditions applicable to Parent in the Debt Commitment Letter (or definitive agreements entered into with respect to the Debt Commitment Letter), (v) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in the Debt Commitment Letter have been satisfiedand the Definitive Agreements within Buyer’s control and complying with its obligations thereunder and (iv) enforcing its rights under the Debt Commitment Letter, cause in each case in a timely and diligent manner. (b) In the event any portion of the Financing Sources to fund contemplated by the Debt Financing at the Closing; provided, that, notwithstanding anything to the contrary herein, Parent shall not be required to arrange and obtain the proceeds Commitment Letter becomes unavailable regardless of the Debt reason therefor, and such amount of Financing in accordance with is necessary to finance the foregoing clause Financing Amounts, (i) through Buyer shall promptly notify Seller in writing of such unavailability and the reason therefor and (vi)ii) Buyer shall use its reasonable best efforts, and shall not be required cause each of its Subsidiaries to enter into definitive agreements with respect theretouse their reasonable best efforts, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expenses.obtain as
Appears in 1 contract
Debt Financing. (a) Parent Each of Parent, Merger Sub Two and Merger Sub Three shall use its reasonable best efforts to take take, or cause to be taken taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable necessary to arrange and obtain the proceeds of the Debt Financing at or prior to on the Closingterms and conditions described in the Debt Commitment Letters, including using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) comply with its obligations under the Debt Commitment Letter, (iii) negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter Letters (including, as promptly as practicable after necessary, the “flex” provisions contained in any related fee letter) by a date hereof, but in no event later than the Acceptance Time, or on such other terms date that is three months from the date hereof and conditions no less favorable in the aggregate (ii) to Parent than the terms and conditions contained in the Debt Commitment Letter (provided that such other terms would not reasonably be expected to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at or prior to the Closing Date), (iv) satisfy (or seek if determined advisable by Parent, Merger Sub Two and Merger Sub Three, obtain the waiver of) on a timely basis all conditions applicable to Parent in obtaining the Debt Commitment Letter (or definitive agreements entered into Financing within Parent’s, Merger Sub Two’s and Merger Sub Three’s control and to comply with respect all of its obligations pursuant to the Debt Commitment Letter), (v) prepare Letters and the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in definitive agreements related thereto. In the event that all conditions to funding the commitments contained in the Debt Commitment Letter Letters have been satisfied, each of Parent, Merger Sub Two and Merger Sub Three shall use its best efforts to cause the Financing Sources to fund the Debt Financing at required to consummate the Closing; providedtransactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by taking enforcement action to cause the Financing Sources to provide the Debt Financing). Each of Parent, thatMerger Sub Two and Merger Sub Three shall use its best efforts to enforce all of its rights under the Debt Commitment Letters. Parent, notwithstanding anything Merger Sub Two and Merger Sub Three shall give Seller prompt notice of any material breach by any party to the contrary hereinDebt Commitment Letters or the definitive agreements related thereto of which Parent, Parent shall not be required to arrange and obtain Merger Sub Two or Merger Sub Three has become aware or any termination of any of the proceeds Commitment Letters or such definitive agreements. In the event that any portion of the Debt Financing in accordance with becomes unavailable, Parent, Merger Sub Two and Merger Sub Three shall (1) use their best efforts to obtain, as promptly as practicable following the foregoing clause occurrence of such event, alternative debt financing for any such portion from alternative debt sources (i“Alternative Financing”) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to that will still enable it Parent, Merger Sub Two and Merger Sub Three to consummate the Merger Transactions and (2) promptly notify the Company of such unavailability and the reason therefor. If obtained, Parent shall deliver to the Company true and complete copies of all agreements (other transactions contemplated hereby than any fee letters and engagement letters) pursuant to pay which any such alternative source shall have committed to provide Parent or the New EP Surviving Corporation with Alternative Financing. Parent, Merger Sub Two and Merger Sub Three shall not, without the Company’s prior written consent (not to be unreasonably withheld) permit any amendment or modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreements related fees thereto unless the terms of such Debt Commitment Letter or definitive agreements related thereto, in each case as so amended, modified or waived, are substantially similar to those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall as good as or better for Parent, Merger Sub Two and expensesMerger Sub Three than those in the Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver). Parent, Merger Sub Two and Merger Sub Three shall provide the Company with prompt written notice of the receipt of any notice or other communication from any financing source with respect to such financing source’s failure or anticipated failure to fund its commitments under any Debt Commitment Letters or definitive agreement in connection therewith. Parent, Merger Sub Two and Merger Sub Three shall keep the Company reasonably informed on a reasonably current basis of the status of its efforts to consummate the Debt Financing.
Appears in 1 contract
Debt Financing. (a) Parent The Company shall use use, and shall cause its Subsidiaries (including Virgo Aerospace Intermediate and Virgo Borrower) 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 reasonably necessary, proper or advisable to arrange and obtain the proceeds of consummate the Debt Financing at or prior to the ClosingClosing on the terms and subject only to the conditions (including any “flex” provisions) set forth in the Debt Commitment Letter (or, at the reasonable discretion of the Company in consultation with Parent, on other terms not less favorable in the aggregate to the Company than the terms and conditions (including flex provisions) set forth in the Debt Commitment Letter, and in no event contain any terms or conditions that would reasonably be expected to constitute a Restricted Financing Modification), including executing and delivering all such documents and instruments as may be reasonably required thereunder and using (and causing its Subsidiaries to use) their respective reasonable best efforts to: , (i) comply with and maintain in full force and effect the Debt Financing and the Debt Commitment Letter in accordance with the terms and subject only to the conditions thereof, (ii) comply with its obligations under the Debt Commitment Letter, (iii) negotiate and enter into definitive financing agreements with respect thereto to the Debt Financing on the terms and subject only to the conditions contained in the Debt Commitment Letter as promptly as practicable after the date hereof, but in no event later than the Acceptance Time, or on such other terms and conditions no less favorable in the aggregate to Parent than the terms and conditions contained set forth in the Debt Commitment Letter (provided the “Financing Agreements”) (and maintain in full force and effect the Financing Agreements in accordance with the terms and subject only to the conditions thereof) so that such other the Financing Agreements are in full force and effect as promptly as practicable but in any event no later than the Closing, (ii) satisfy, or cause their respective Representatives to satisfy, at or before Closing, all the terms would not reasonably be expected and conditions to delay or hinder the Acceptance Time or adversely impact the ability of Parent to obtain the proceeds of the Debt Financing at or prior to the Closing Date), (iv) satisfy (or seek waiver of) on a timely basis all conditions applicable to Parent in contemplated by the Debt Commitment Letter and Financing Agreements (including by paying any commitment fees or definitive agreements entered into with respect other fees or deposits required to be paid by them by the Debt Commitment Letter), (viii) prepare the information memoranda, preliminary and final offering memoranda or prospectuses, registration statements and other materials to be used in connection with obtaining the Debt Financing prior to the anticipated date on which all of the Offer Conditions have been satisfied or waived, to the extent reasonably practicable and (vi) in the event that all conditions in enforce its rights under the Debt Commitment Letter have been satisfiedand Financing Agreements in the event of a breach (or threatened breach) by the Debt Financing Sources under the Debt Commitment Letter or the Financing Agreements, as applicable, and (iv) cause the Debt Financing Sources and any other Persons providing Debt Financing to fund the Debt Financing at no later than the Closing; provided, that, without limitation to Section 7.12(c), notwithstanding the foregoing or anything else in this Agreement to the contrary hereincontrary, Parent shall not be required the Company may and may permit Virgo Aerospace Intermediate and/or Virgo Borrower (A) to arrange and obtain increase the proceeds aggregate amount of the Debt Financing for the primary purpose of, repayment in accordance with the foregoing clause (i) through (vi), and shall not be required to enter into definitive agreements with respect thereto, if the cash or other sources of immediately available funds Parent has or will have prior to the Closing, including, without limitation, cash and cash equivalents (including short-term marketable securities) of the Company and the net proceeds of any Substitute Financing) are in an amount sufficient to enable it to consummate the Merger and the other transactions contemplated hereby and to pay any related fees and expenses.full and
Appears in 1 contract
