Financing and Financing Cooperation. (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter. (b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Sherwin Williams Co), Merger Agreement (Valspar Corp)
Financing and Financing Cooperation. (a) Parent shall, and shall cause its Affiliates to, use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable or properto arrange, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain and consummate the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described specified in the Commitment LetterLetters or any Substitute Debt Financing (and, in any event, no later than the time at which the Closing is required to occur pursuant to Section 2.2), including using its reasonable best efforts to: to (ii)(A) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements Letters and comply with its all of their respective covenants and obligations thereunder; , (B) negotiate and, assuming all conditions to Closing set forth in Section 8.1 and Section 8.2 hereof have been satisfied, enter into and deliver definitive agreements with respect to the Financing reflecting the terms and conditions contained in the Commitment Letters, so that such agreements are in effect no later than the time at which the Closing is required to occur pursuant to Section 2.2 and (C) enforce their rights under the Commitment Letters and (ii) satisfy on a timely basis all the conditions to the Financing and the definitive agreements related thereto that are in Parent’s (or if applicable its Subsidiaries’) control. In the event that all conditions set forth in Article VIII have been satisfied or waived or, upon funding shall be satisfied or waived, and the Closing should otherwise occur pursuant to Section 2.2, Parent and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (the “Debt Financing Parties”) to fund the Financing at the Effective Time.
(b) Parent shall use reasonable best efforts to cause keep the Company informed on a current basis of the status of the Financing and material developments with respect thereto and provide the Company promptly (and in no event later than one Business Day) with copies of any material definitive agreements related to be satisfied the Financing. Without limiting the foregoing, Parent shall promptly (orand in no event later than one Business Day) after obtaining knowledge thereof, if deemed advisable give the Company written notice of any (i) breach or default by Parent, seek a waiver of) on a timely basis all conditions its Affiliates, any Debt Financing Party or any other party to the funding Commitment Letters or any definitive document related to the Financing (or any event or circumstance, with or without notice, lapse of time, or both, would give rise to any breach or default), (ii) threatened or actual withdrawal, repudiation, expiration, intention not to fund or termination of or relating to the Commitment Letters or the Financing, (iii) material dispute or disagreement between or among any parties to the Commitment Letters or any definitive document related to the Financing that could reasonably be expected to affect the availability of the Financing at Closing or (including iv) if for any reason Parent in good faith no longer believes it will be able to obtain all or any portion of the Financing Conditions) set forth in needed to consummate the Merger at the Effective Time. Parent may amend, modify, terminate, assign or agree to any waiver under the Commitment Letter and Letters without the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request prior written approval of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance provided that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not without the Company’s prior written consent, permit Merger Sub any such amendment, modification, assignment, termination or waiver to be made to, or consent to or agree to any waiver of, any provision of or permit any termination, amendment, replacement or other modification of remedy under the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification Letters which would (iA) reduces reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount), (iiB) imposes impose new or additional conditions or other terms to the Financing or otherwise modifies expand, amend or modify any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.or
Appears in 2 contracts
Samples: Merger Agreement, Agreement and Plan of Merger
Financing and Financing Cooperation. (a) Parent shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessaryreasonably necessary to consummate the Financing or any Substitute Financing in an amount sufficient, advisable together with cash on hand, amounts available to be drawn on the Parent Revolving Credit Facilities, and any other committed financing that replaces or proper, supplements the Financing consistent with the terms set forth in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Pricethis Section 5.15, to obtain consummate the Financing Merger and the other transactions contemplated by hereby no later than the Commitment Letter on or prior Closing, including, to the Closing Date on extent necessary to consummate the terms Merger and conditions described in the Commitment Lettersuch other transactions, including using reasonable best efforts to: to (i) (A) maintain in effect the Commitment Letter Debt Letters and any Definitive Debt Financing Agreements and in all material respects comply with its all of their respective obligations thereunder; thereunder and (B) negotiate, enter into and deliver definitive agreements with respect to the Financing reflecting the terms contained in the Debt Letters (or with other terms agreed by Parent and the Financing Parties, subject to the restrictions on amendments of the Debt Letters set forth below), so that such agreements are in effect no later than the Closing, and (ii) satisfy satisfying on a timely basis all the conditions to the Financing and the definitive agreements related thereto that are in Parent’s (or if applicable its Subsidiaries’) control. In the event that all conditions set forth in Sections 6.1 and 6.2 have been satisfied or waived or, upon funding of the Financing, shall have been satisfied or waived, Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to cause the Persons providing the Financing (the “Financing Parties”) to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby. Parent shall pay, or cause to be satisfied paid, as the same shall become due and payable, all fees and other amounts under the Debt Letters.
(or, if deemed advisable by Parent, seek a waiver ofb) Parent will keep the Company reasonably informed on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its Parent’s efforts to arrange obtain the Financing contemplated by and to satisfy the Commitment Letter and conditions thereof, including providing copies of any other financing amendment, modification or replacement of the Debt Letters (which may be redacted in a customary manner) and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of the Cash Consideration portion of the Merger Amount contemplated by Consideration and all fees and expenses to be incurred in connection therewith. Parent may amend, modify, replace, terminate, assign or agree to any waiver under the Commitment Letter.
(b) Prior to Debt Letters without the Closingprior written approval of the Company, provided, that Parent shall not, and shall not without the Company’s prior written consent, permit Merger Sub any such amendment, replacement, modification, assignment, termination or waiver to be made to, agree or consent to any waiver of, any provision of or permit any termination, amendment, replacement or other modification of remedy under the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification Letters which would (i) reduces reduce the aggregate cash amounts of the Financing (including by increasing the amount of fees to be paid or original issue discount) unless the aggregate amount of the Financing following such reduction, together with cash on hand, amounts available to be drawn on the Parent Revolving Credit Facilities and other financial resources of Parent on the Closing Date, is sufficient to consummate the Merger and the other transactions contemplated hereby (it being understood that any such reduction in such amounts in accordance with the terms of such Debt Letter shall be permitted) or (ii) imposes impose new or additional conditions or other terms to the Financing or otherwise modifies expand, amend, modify or waive any of the conditions to the receipt of the Financing or other terms in a manner that in any would reasonably be expected to (xA) materially delay or prevent make less likely the Closing or (y) make the timely funding of the Financing (or satisfaction of the conditions to obtaining the Financing materially less likely to occurFinancing) on the Closing Date, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) materially adversely impact the ability of Parent to enforce its rights against the Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (C) materially adversely affect the ability of Parent or any of its Subsidiaries to timely consummate the Merger and the other transactions contemplated hereby; provided, that notwithstanding the foregoing, Parent may modify, supplement or amend the Debt Letters to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had that have not executed the Commitment Letter Debt Letters as of the date hereof of this Agreement and (2) implement or to reassign titles to such parties who had executed exercise any “market flex” provisions contained in the Commitment Letter as Debt Letters. In the event that new commitment letters and/or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of the date hereof. Upon any Debt Letters permitted pursuant to this Section 5.15, such amendment, replacement or modification, new commitment letters and/or fee letters shall be deemed to be the term “Commitment LetterDebt Letters” for all purposes of this Agreement and references to “Definitive Debt Financing AgreementFinancing” herein shall include and mean the Commitment Letter or Definitive financing contemplated by the Debt Financing Agreement, as applicable, Letters as so amended, replaced replaced, supplemented or otherwise modified, as applicable. Parent shall promptly deliver to the Company copies of any such termination, amendment, modification, waiver or replacement or other modification of the Commitment LetterDebt Letters. If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable, Parent shall, and shall cause its Subsidiaries to, as promptly as practicable following the occurrence of such event (x) notify the Company in writing thereof and (y) use reasonable best efforts to obtain substitute financing, including, as applicable, a commitment to provide such substitute financing (on terms and conditions that are not materially less favorable to Parent, taken as a whole, than the terms and conditions as set forth in the Debt Letters, taking into account any “market flex” provisions thereof) sufficient, together with cash on hand, amounts available to be drawn on the Parent Revolving Credit Facilities and other financial resources of Parent on the Closing Date, to enable Parent and its Subsidiaries to consummate the Merger and the other transactions contemplated hereby in accordance with the terms hereof (the “Substitute Financing”) and, promptly after execution thereof, deliver to the Company true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form removing only the fee amounts, pricing caps, the rates and amounts included in the “market flex”) or related definitive financing documents with respect to such Substitute Financing. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the “Financing” and any commitment letter for such Substitute Financing shall be deemed to be the “Debt Letters” for all purposes of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (United Technologies Corp /De/)
Financing and Financing Cooperation. (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 necessary, advisable or properproper to arrange, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to and obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment LetterLetters by the Closing, including using reasonable best efforts to: to (i) maintain in effect the each Commitment Letter (provided that such Commitment Letters may be amended, supplemented, modified and any Definitive Debt Financing Agreements and comply with its obligations thereunder; replaced as set forth below), (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent to the funding of the Financing (including the Financing Conditions) set forth in each Commitment Letters and within Parent’s control (other than any condition where the Commitment Letter and failure to be so satisfied is a direct result of the Definitive Debt Financing Agreements; Company’s failure to furnish information to Parent) and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter Letters (includingincluding any “flex” provisions), if necessary, or terms and conditions not materially less favorable (taken as a whole) to Parent than the terms and conditions contemplated by each Commitment Letters (including any “flex” provisions) (which terms and conditions would not reasonably be expected to prevent, materially delay or materially impede the “Definitive Debt Financing Agreements”). Upon the reasonable request consummation of the Company, Parent shall provide Financing or the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterMerger.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of the its material rights under, any Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or Definitive Debt Financing Agreements if such terminationdelayed); provided that Parent and Merger Sub may, without the Company’s prior written consent (x) enter into any amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions replacement, supplement or other terms modification to or otherwise modifies waiver of any provision of the conditions to the receipt of the Financing or other terms in a manner any Commitment Letter that does not contain any provisions that would reasonably be expected to (x) prevent, materially delay or prevent materially impede the Closing or (y) make the timely funding consummation of the Financing or satisfaction of the Merger; and (y) amend, replace, supplement or otherwise modify any Commitment Letter (subject to the terms and conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (Bthereof) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the such Commitment Letter Letters as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereofthis Agreement. Upon any such amendment, replacement replacement, supplement or modification, the term “Commitment Letter” and “Definitive Debt Financing AgreementLetters” shall mean the include any such Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. For the avoidance of doubt, each of Parent and Merger Sub may, if it so determines in its discretion, arrange for alternative financing for the Merger from a third party or parties reasonably satisfactory to Parent (and thereafter the “Commitment Letter” (as modified in singular form if the context requires) and the “Financing” as defined herein shall refer to such financing commitment in respect of such alternative financing) on terms and conditions not materially less favorable to Parent (taken as a whole), if such alternative financing does not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Financing or the Merger. If any such alternate financing is obtained Parent shall promptly deliver to and in any event within one Business Day provide the Company copies with a copy of any new financing commitment (redacted for provisions related to fees, pricing, “flex” terms, any other economic terms and other confidential terms but not, for the avoidance of doubt, as to any matters related to conditionality) that provides for such amendment, replacement or other modification of the Commitment Letteralternative financing.
Appears in 2 contracts
Samples: Merger Agreement (McMoran Exploration Co /De/), Merger Agreement (Freeport McMoran Copper & Gold Inc)
Financing and Financing Cooperation. (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 necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect and enforce the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunderthereunder (provided that the Commitment Letter may be amended, supplemented, modified and replaced as set forth below); (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis and in a manner that will not impede the ability of the parties to consummate the Merger in advance of the End Date all conditions applicable to Parent and Merger Sub to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and any definitive agreements executed in connection therewith within Parent’s control (other than any condition where the Definitive Debt Financing Agreements; failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise to comply with its obligations under this Agreement) and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that has had or is reasonably likely to have, individually or in the aggregate, a material adverse impact on with respect to the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterFinancing.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that Parent and Merger Sub may, without the Company’s prior written consent, (x) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that would not reasonably be expected to prevent, materially delay or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces materially impede the aggregate amount consummation of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or Merger; and (y) make amend, replace, supplement or otherwise modify the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof of this Agreement so long as any such addition would not reasonably be expected to prevent, materially delay or to reassign titles to such parties who had executed materially impede the Commitment Letter as consummation of the date hereof. Upon Financing or the Merger (it being understood that any such amendment, replacement replacement, supplement or modification, modification that provides for the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies assignment of any such amendment, replacement or other modification a portion of the Commitment Letter.Financing commitments to any additional lenders, lead arrangers, book runners, syndication agents or similar entities and the granting to such persons of approval rights in accordance with
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Family Dollar Stores Inc)
Financing and Financing Cooperation. (a) Parent shall use its reasonable best efforts to take, or use reasonable best efforts to cause to be taken, taken all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Financing contemplated by proceeds of the Commitment Letter on or Financing, if required, prior to the Closing Date on date upon which the Merger is required to be consummated pursuant to the terms and conditions described in the Commitment Letterhereof, including by using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; Letter, (ii) negotiate definitive agreements (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the bridge portion of the Financing) with respect to the Financing (the “Definitive Agreements”) not less favorable to Parent and Merger Sub with respect to conditionality than the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a the waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; Agreements that are under its control and (iii) negotiate and enter into definitive debt financing agreements on comply with its obligations thereunder. In the terms and subject to the event that all conditions contemplated by contained in the Commitment Letter (includingother than those conditions that by their nature are to be satisfied by actions to be taken at the Closing, but subject to the satisfaction or waiver of such conditions) have been satisfied or waived, Parent shall use reasonable best efforts to enforce its rights under the Commitment Letter and the Definitive Documents in a timely and diligent manner to cause the Lenders to comply with their respective obligations thereunder, including to fund the Financing, if necessaryrequired.
(i) Parent shall not, any “flex” provisions) (nor shall it permit Merger Sub to, without the “Definitive Debt Financing Agreements”). Upon the reasonable request prior written consent of the Company: (A) permit any amendment or modification to, or any waiver of any provision or remedy under, the Commitment Letter or Definitive Agreements if such amendment, modification, waiver or remedy (1) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (2) reduces the amount of, or otherwise impairs the ability of the Parent shall provide or Merger Sub to obtain the Company information in reasonable detail about the status of its efforts to arrange full amount of, the Financing contemplated by the Commitment Letter and any Letter, (3) adversely affects the ability of Parent to enforce its rights against other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely parties to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces relative to the aggregate amount ability of Parent to enforce its rights against the Financing other parties to the Commitment Letter as in effect on the date hereof or (ii4) imposes new or additional conditions or other terms or would otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) prevent, impede or materially delay or prevent the Closing or (y) make the timely funding consummation of the Financing or satisfaction Merger and the other transactions contemplated by this Agreement (provided, that, for the avoidance of doubt, Parent may amend the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook-runners, syndication agents or similar entities who had not executed the such Commitment Letter as of the date hereof of this Agreement, if the addition of such parties, individually or in the aggregate, does not add new (or adversely modify any existing) conditions to reassign titles to such parties who had executed the Commitment Letter as consummation of the date hereof. Upon any such amendment, replacement Financing); or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean (B) terminate the Commitment Letter or any Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement modification, waiver or replacement.
(ii) In the event that any portion of the Financing becomes unavailable, regardless of the reason therefor, Parent will (A) use reasonable best efforts to obtain alternative debt financing in an amount sufficient, when taken together with available cash of Parent, the Parent Subsidiaries, the Company and the Company Subsidiaries and the available portion of the Financing, to fund the cash portion of the Merger Consideration and the other Merger Amounts (the “Alternate Financing”) from the same or other modification sources and which do not include any conditions to the consummation of such alternative debt financing that are more onerous than the conditions set forth in the Financing and (B) promptly notify the Company of such unavailability and the reason therefor. In furtherance of and not in limitation of the foregoing, in the event that (1) any portion of the Financing or any financing in connection with the transactions contemplated by this Agreement structured as high yield or debt securities financing is unavailable, regardless of the reason therefor, (2) all conditions contained in Section 6.1 and Section 6.2 have been satisfied or waived (other than (x) any such conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions at the Closing, and (y) those conditions the failure of which to be satisfied is attributable to a breach by Parent or the Parent Subsidiaries of their representations, warranties, covenants or agreements contained in this Agreement), (3) the Marketing Period shall have ended and (4) the bridge facilities contemplated by the Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 5.16) are available on the terms and conditions described in the Commitment Letter (or replacements thereof), then each of Parent and the Parent Subsidiaries shall use their reasonable best efforts to cause the proceeds of such bridge financing to be used immediately in lieu of such affected portion of the high yield financing. For the purposes of this Agreement, in the event any Alternate Financing is obtained and an alternate commitment letter (or similar agreement) (the “Alternate Commitment Letter”) is entered into in compliance herewith, (A) any reference in this Agreement to “Financing” shall mean the financing contemplated by the Commitment Letter as modified pursuant to clause (B) below and any Definitive Agreements (including definitive agreements relating to Alternate Financing), and (B) the term Commitment Letter (or defined terms that use such phrase) shall be deemed to include any Commitment Letter remaining in effect at the time in question and any Alternate Commitment Letter to the extent then in effect. Parent shall provide the Company with prompt notice of any material breach, material default, termination or repudiation by any party to the Commitment Letter or any Definitive Agreement and a copy of any written notice or other written communication from any Lender or other Alternate Financing source with respect to any material breach, material default, termination or repudiation by any party to the Commitment Letter or any Definitive Agreement of any provision thereof. Upon request of the Company, Parent shall appraise the Company of developments relating to the Financing. The foregoing notwithstanding, compliance by Parent and/or Merger Sub with this Section 5.16 shall not relieve Parent or Merger Sub of their obligations to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
Appears in 2 contracts
Samples: Merger Agreement (Taylor Morrison Home Corp), Agreement and Plan of Merger (William Lyon Homes)
Financing and Financing Cooperation. (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 necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, necessary to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date in an amount sufficient to pay the aggregate Cash Consideration payable in the Merger and all fees and expenses of Parent due on the terms and conditions described in the Commitment LetterClosing Date, including using reasonable best efforts to: to (i) maintain in effect the Commitment Letter in accordance with its terms (provided that the Commitment Letter may be amended, supplemented, modified and any Definitive Debt Financing Agreements replaced as set forth below and the commitment amounts may be reduced as set forth below), (ii) comply with its obligations thereunder; under the Commitment Letter, (iiiii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and within Parent’s control, (iiiiv) negotiate and enter into definitive debt financing agreements with respect thereto no later than the Closing Date on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) and (v) draw up to the “Definitive Debt Financing Agreements”). Upon the reasonable request full amount of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange Financing and cause the Financing contemplated by Sources party thereto to fund the Commitment Letter and any other financing and shall give Financing in accordance with its terms on the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or Closing Date in the aggregate, a material adverse impact on event that the conditions set forth in Section 6.1 and Section 6.2 and the conditions precedent to the Financing necessary have been satisfied or, upon funding would be satisfied, in each case to pay the Merger Amount contemplated by extent the Commitment LetterFinancing is needed to consummate the Merger.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of, or waive any of its rights or remedies under, the Commitment Letter or any definitive agreements with respect thereto without the Company’s prior written consent; provided that Parent or Merger Sub may, without the Company’s prior written consent (x) enter into any amendment, replacement or other modification to or waiver of any provision of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification any definitive agreement with respect thereto that (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would not reasonably be expected to (x) prevent, materially delay or prevent materially impede the Closing consummation of the Merger or (y) make the timely funding of the Financing or the satisfaction of the conditions to obtaining the Financing materially less likely to occur, (ii) does not reduce the commitment amount of the Financing unless the aggregate amount of the Financing following such reduction, together with other thanfinancial resources available to Parent (including any amounts funded into an escrow account with release provisions no less favorable in any material respect to Parent than the conditions precedent set forth in the Commitment Letter), in each case, (A) a waiver of any closing conditions by lender(s) or their agent is sufficient to consummate the Merger or (Biii) does not materially and adversely affect the ability of Parent or its Subsidiaries to enforce their rights against the other parties to the Commitment Letter or any definitive agreement with respect thereto; and (y) amend, replace or otherwise modify the Commitment Letter or any definitive agreement with respect thereto to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof of this Agreement or to reassign titles to such parties who had executed the Commitment Letter as of the date hereofof this Agreement. Parent shall furnish the Company with any such amendments, modifications or waivers to the Commitment Letter or definitive agreement with respect thereto (which may be redacted as provided in Section 4.12). Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Linear Technology Corp /Ca/), Merger Agreement (Analog Devices Inc)
Financing and Financing Cooperation. (a) Each of Parent and Intermediate Parent shall use its reasonable best efforts to take, or use reasonable best efforts to cause to be taken, taken all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the proceeds of the Financing contemplated by the Commitment Letter on or prior to the Closing Date on date upon which the Merger is required to be consummated pursuant to the terms and conditions described in the Commitment Letterhereof, including by using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; Letter, (ii) negotiate definitive agreements (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Financing) with respect to the Financing (the “Definitive Agreements”) not less favorable to Parent, Intermediate Parent and Merger Sub with respect to conditionality than the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a the waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; Agreements that are under its control and (iii) negotiate and enter into definitive debt financing agreements on comply with its obligations thereunder. In the terms and subject to the event that all conditions contemplated by contained in the Commitment Letter (includingother than those conditions that by their nature are to be satisfied by actions to be taken at the Closing, if necessary, any “flex” provisionsbut subject to the satisfaction or waiver of such conditions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Companyhave been satisfied, Parent and Intermediate Parent shall provide the Company information in use reasonable detail about the status of its best efforts to arrange the Financing contemplated by enforce its rights under the Commitment Letter and any other financing the Definitive Documents in a timely and shall give diligent manner to cause the Company prompt notice of any factLenders to comply with their respective obligations thereunder, change, event or circumstance that is reasonably likely including to have, individually or in fund the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterFinancing.
(bi) Prior to the ClosingNeither Parent nor Intermediate Parent shall, Parent nor shall not, and shall not they permit Merger Sub to, agree to or without the prior written consent of the Company: (A) permit any terminationamendment or modification to, amendmentor any waiver of any provision or remedy under, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement modification, waiver or modification remedy (i1) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (2) reduces the aggregate amount of the Financing Financing, (3) adversely affects the ability of Parent or Intermediate Parent to enforce its rights against other parties to the Commitment Letter or Definitive Agreements relative to the ability of Parent to enforce its rights against the other parties to the Commitment Letter as in effect on the date hereof or (ii4) imposes new or additional conditions or other terms or would otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) prevent, impede or materially delay or prevent the Closing or (y) make the timely funding consummation of the Financing or satisfaction Merger and the other transactions contemplated by this Agreement (provided, that, for the avoidance of doubt, Parent may amend the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook-runners, syndication agents or similar entities who had not executed the such Commitment Letter as of the date hereof of this Agreement, if the addition of such parties, individually or in the aggregate, does not add new (or adversely modify any existing) conditions to reassign titles to such parties who had executed the Commitment Letter as consummation of the date hereof. Upon any such amendment, replacement Financing); or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean (B) terminate the Commitment Letter or any Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent and Intermediate Parent shall promptly deliver to the Company copies of any such amendment, replacement modification, waiver or other modification replacement.
(ii) In the event that any portion of the Commitment Letter.Financing becomes unavailable, regardless of the reason therefor, Parent will (A) use reasonable best efforts to obtain alternative debt financing in an amount sufficient, when taken together with available cash of Parent, the Parent Subsidiaries, the Company and the Company Subsidiaries and the available portion of the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Taylor Morrison Home Corp), Merger Agreement (AV Homes, Inc.)
Financing and Financing Cooperation. (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Debt Financing contemplated by the Debt Financing Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Debt Financing Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Financing Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Debt Financing (including the Financing Conditions) set forth in the Debt Financing Commitment Letter and the Definitive Debt Financing Agreements, in each case, within the control of Parent and required to be satisfied by it; and (iii) negotiate and enter into definitive debt financing agreements on a timely basis on the terms and subject to the conditions contemplated by the Debt Financing Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”); and (iv) if the Debt Financing is necessary to consummate the transactions contemplated hereby and the conditions set forth in Section 7.1 and Section 7.2 and the Financing Conditions have been satisfied or, upon funding would be satisfied, enforce all of its rights under the Debt Financing Commitment Letter of the Definitive Debt Financing Agreements and cause the Financing Source Parties to fund the full amount of the Debt Financing. Parent shall give the Company prompt written notice (i) of, to the Knowledge of Parent, any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in breach or default) by any party to the Debt Financing Commitment Letter, (ii) if and when, to the Knowledge of Parent, any portion of the Debt Financing contemplated by the Debt Financing Commitment Letter may not be available on the Closing Date for the purposes of consummating the transactions contemplated by this Agreement, and (iii) of any expiration or termination of the Debt Financing other than an expiration or termination in accordance with the terms of the Debt Financing Commitment Letter. Upon the reasonable request of the Company, Parent shall provide keep the Company informed on a reasonably current basis with reasonably detailed information in reasonable detail about the status of its efforts to arrange obtain the Debt Financing contemplated by the Debt Financing Commitment Letter and any other financing the Replacement Financings, if any, and shall give provide to the Company prompt notice copies of all material definitive documents related to the Debt Financing (provided, however, any fee letter may be customarily redacted in respect of (x) fee amounts and pricing and (y) terms of any fact, change, event or circumstance that is market flex in a manner reasonably likely satisfactory to have, individually or in the aggregate, a material adverse impact on the Financing Source Parties). If the Debt Financing is necessary to pay consummate the Merger Amount transactions contemplated by hereby, then neither Parent nor any of its Subsidiaries shall take any action that could reasonably be expected to materially delay or prevent the Commitment Letterconsummation of the transactions contemplated hereby, including the Debt Financing.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement amendment or other modification of the Debt Financing Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement amendment or modification (i) reduces the aggregate amount of proceeds of the Debt Financing (including by way of increased OID or fees) necessary to pay the Merger Amount or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing Conditions or other terms in a manner that would reasonably be expected to (x) materially delay or prevent the Closing or (y) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Financing Conditions materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Debt Financing Commitment Letter as of the date hereof; provided, that Parent shall have the right to substitute other financing for all or any portion of the Debt Financing from the same and/or alternative Financing Source Parties as set forth (and subject to the requirements) below, without the Company’s prior written consent. Upon any such amendment, replacement modification or modificationsubstitution (including with any Replacement Financing), the term “Debt Financing Commitment Letter” and “Definitive Debt Financing AgreementAgreements” shall mean the Debt Financing Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amendedamended or modified and shall include the related commitment letters, replaced engagement letters, term sheets and other definitive agreements with respect to each Replacement Financing; provided, that in the event the commitments under the Debt Financing Commitment Letter are reduced as a result of or modifiedin connection with any Replacement Financing, the term “Debt Financing” shall be deemed to include such Replacement Financing. Parent shall promptly deliver to the Company copies of any such amendment, replacement material amendment or other modification of the Debt Financing Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Cintas Corp), Merger Agreement (G&k Services Inc)
Financing and Financing Cooperation. (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 necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to arrange and obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment LetterLetters by the Closing, including using reasonable best efforts to: to (i) maintain in effect the each Commitment Letter (provided that each such Commitment Letter may be amended, supplemented, modified and any Definitive Debt Financing Agreements and comply with its obligations thereunder; replaced as set forth below), (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent or Merger Sub to the funding of the Financing (including the Financing Conditions) set forth in the each Commitment Letter and within Parent’s or Merger Sub’s control (other than any condition where the Definitive Debt Financing Agreements; failure to be so satisfied is a direct result of the Company’s failure to comply with clauses (d) and (e) of this Section 5.13) and otherwise comply with its obligations thereunder and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject conditions contemplated by each Commitment Letter (including any “flex” provisions), or terms and conditions not materially less favorable (taken as a whole) to Parent than the terms and conditions contemplated by the Commitment Letter Letters (including, if necessary, including any “flex” provisions) (which terms and conditions would not reasonably be expected to prevent, materially delay or materially impede the “Definitive Debt Financing Agreements”). Upon the reasonable request consummation of the Company, Parent shall provide Financing or the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterMerger.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of the its material rights under, any Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or Definitive Debt Financing Agreements if such terminationdelayed); provided that Parent and Merger Sub may, without the Company’s prior written consent (x) enter into any amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions replacement, supplement or other terms modification to or otherwise modifies waiver of any provision of the conditions to the receipt of the Financing or other terms in a manner any Commitment Letter that does not contain any provisions that would reasonably be expected to (x) prevent, materially delay or prevent materially impede the Closing or (y) make the timely funding consummation of the Financing or satisfaction of the Merger; and (y) amend, replace, supplement or otherwise modify any Commitment Letter to (subject to the terms and conditions to obtaining the Financing materially less likely to occur, other than, in each case, (Athereof) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the such Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereofthis Agreement. Upon any such amendment, replacement replacement, supplement or modification, the term “Commitment Letter” and “Definitive Debt Financing AgreementLetters” shall mean the include any such Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. For the avoidance of doubt, each of Parent and Merger Sub may, if it so determines in its discretion, arrange for alternative financing for the Merger from a third party or parties reasonably satisfactory to Parent (and thereafter the “Commitment Letters” (as modified to singular form if the context requires) and the “Financing” as defined herein shall refer to such financing commitment in respect of such alternative financing) on terms and conditions not materially less favorable to Parent (taken as a whole, as reasonably determined by Parent), if such alternative financing does not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Financing or the Merger. If any such alternate financing is obtained Parent shall promptly deliver to provide the Company copies with a copy of any new financing commitment (redacted for provisions related to fees, pricing, “flex” terms and any other economic terms) that provides for such amendment, replacement or other modification of the Commitment Letteralternative financing.
Appears in 2 contracts
Samples: Merger Agreement (Freeport McMoran Copper & Gold Inc), Merger Agreement (Plains Exploration & Production Co)
Financing and Financing Cooperation. (a) Unless, and to the extent, Parent and Merger Sub have sufficient cash from other sources sufficient to consummate the Merger, the Transactions and to pay the Cash Consideration, any cash in lieu of fractional Parent Common Shares pursuant to Section 3.13, all other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions and any other related fees and expenses, and for the Refinancing (the “Necessary Financing”) (including pursuant to any Alternate Financing or other alternative financing), each of Parent and Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the full amount of the Financing contemplated by (or such portion of the Commitment Letter on Financing as Parent determines to be necessary, together with cash from other sources (including pursuant to any Alternate Financing or prior other alternative financing), to satisfy its obligations under Section 5.28(d) and for the Closing Date Refinancing), on the terms and conditions described in the Commitment LetterLetter (as it may be amended in accordance with the provisions below), including using reasonable best efforts to: (i) maintain in after giving effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth market flex terms in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Redacted Fee Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or (without the written consent of the Company) permit any terminationamendment or modification to be made to (other than to amend the Commitment Letter to add lenders, amendmentco-agents, replacement lead arrangers or other modification similar entities who have not executed the Commitment Letter as of the date hereof or to reassign titles), or any waiver of any provision or remedy under, the Commitment Letter or Definitive Debt Financing Agreements the Redacted Fee Letter, if such termination, amendment, replacement modification or modification waiver (i) reduces the aggregate amount of the Financing (taking into account any Alternate Financing or other alternative financing and any cash from other sources) such that Parent or Merger Sub would be unable to pay (A) the Cash Consideration, (B) any cash in lieu of fractional Parent Common Shares pursuant to Section 3.13 and (C) all other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions, the funding of the Financing on the Closing Date and any other related fees and expenses) or (ii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (xA) materially delay or prevent the Closing Closing, or (yB) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) than a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, the lead arrangers, bookrunners, syndication lenders or agents or similar entities who had (C) relieve any Financing Source of any of its funding commitments under the Commitment Letter without replacement thereof as provided below; provided that Parent shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources and to replace any Financing Sources with any other financing sources and in connection therewith relieve any such replaced Financing Source of all or a portion of its funding commitments under the Commitment Letter; provided, further, that such substitution shall only be permitted if (1) the terms thereof would not executed be reasonably expected to materially delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (2) the conditions to the Financing set forth in the Commitment Letter would not be expanded or modified in a manner that would reasonably be expected to materially delay or prevent the Closing. Any reference in this Agreement to (I) “Financing” shall include the financing contemplated by the Commitment Letter as amended or modified in compliance with this Section 7.10(a) and (II) “Commitment Letter,” and “Redacted Fee Letter” shall include such documents as amended or modified in compliance with this Section 7.10(a).
(b) Unless, and to the extent, Parent and Merger Sub have sufficient cash from other sources available to satisfy their obligations under Section 5.28(d) and for the Refinancing (including pursuant to any Alternate Financing or other alternative financing), each of the date hereof or Parent and Merger Sub shall use its commercially reasonable efforts to reassign titles to such parties who had executed (i) maintain in effect, and enforce its rights under, the Commitment Letter as in accordance with the terms and subject to the conditions thereof, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions contained in the Commitment Letter, including the market flex provisions in the Redacted Fee Letter and (iii) satisfy (or obtain the waiver of) all conditions within Parent and Merger Sub’s control to funding contained in the Commitment Letter and consummate the Financing at or prior to the Closing. Parent and Merger Sub shall inform the Company on a reasonably current basis in reasonable detail of the date hereofstatus of its efforts to obtain the Financing. Upon Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice after becoming aware of (A) any such amendmentmaterial breach or default (or any event or circumstance that, replacement with or modificationwithout notice, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to the Commitment Letter or Definitive Debt any definitive agreement related thereto, (B) any termination of the Financing Agreementcontemplated by the Commitment Letter and/or (C) the implementation of any of the flex provisions in order to effect all or any portion of the Financing, if such flex provisions would be reasonably expected to prevent or materially delay the Closing.
(c) If, notwithstanding the use of commercially reasonable efforts by Parent to satisfy its obligations under Section 7.10(a) and Section 7.10(b), the Commitment Letter shall expire or be terminated or modified in a manner materially adverse to Parent so as applicableto materially delay or prevent the Closing, as so amendedfor any reason and in whole or in part, replaced or modified. Parent shall promptly deliver prior to the Company copies Closing (including as a result of a breach or repudiation), or if any such amendment, replacement or other modification portion of the Commitment Letter.Financing becomes unavailable (and such portion is necessary for Parent to obtain the Necessary Financing on the
Appears in 1 contract
Samples: Merger Agreement (Cole Corporate Income Trust, Inc.)
Financing and Financing Cooperation. (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 necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect and enforce the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunderthereunder (provided, that the Commitment Letter may be amended, supplemented, modified and replaced as set forth below); (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis and in a manner that will not impede the ability of the parties to consummate the Merger in advance of the End Date all conditions applicable to Parent and Merger Sub to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and any definitive agreements executed in connection therewith within Parent’s control (other than any condition where the Definitive Debt Financing Agreements; failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise to comply with its obligations under this Agreement) and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that has had or is reasonably likely to have, individually or in the aggregate, a material adverse impact on with respect to the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterFinancing.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided, that Parent and Merger Sub may, without the Company’s prior written consent, (x) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter that would not reasonably be expected to prevent, materially delay or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces materially impede the aggregate amount consummation of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or Merger; and (y) make amend, replace, supplement or otherwise modify the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof of this Agreement so long as any such addition would not reasonably be expected to prevent, materially delay or materially impede the consummation of the Financing or the Merger (it being understood that any such amendment, replacement, supplement or modification that provides for the assignment of a portion of the Financing commitments to reassign titles any additional lenders, lead arrangers, book runners, syndication agents or similar entities and the granting to such parties who had executed persons of approval rights in accordance with the term of the syndication provisions of the Commitment Letter as of the date hereofof this Agreement as are customarily granted to additional agents or arrangers, shall be permitted hereunder and shall be deemed to not prevent, materially delay or materially impede the consummation of the Financing or the Merger). Upon any such amendment, replacement replacement, supplement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement replacement, supplement or other modification or waiver of the Commitment Letter.
Appears in 1 contract
Samples: Merger Agreement (Dollar Tree Inc)
Financing and Financing Cooperation. (a) Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Financing contemplated by the Commitment Letter as promptly as practicable and in a timely fashion (and in any event, on or prior to the Closing Date on Date) (to the terms extent such Financing is required to pay the aggregate Purchase Price, the amounts required to be paid under Section 2.4(c) hereof when due and conditions described payable hereunder), and any other amounts required under the Debt Commitment Letter to be paid in connection with the initial funding of the debt financing contemplated by the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect and enforce in all material respects the Debt Commitment Letter (including the applicable commitments thereunder) and any Definitive Debt Financing Agreements (until the termination thereof in accordance with their respective terms) and comply in all material respects with its obligations thereunder; (ii) negotiate and enter into definitive debt financing agreements on the terms contemplated by the Debt Commitment Letter (the “Definitive Debt Financing Agreements”); and (iii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Debt Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request Buyer shall keep Seller reasonably informed of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company Seller reasonably prompt notice upon obtaining knowledge of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact effect on the Financing necessary to pay availability of the Merger Amount debt financing contemplated by the Debt Commitment Letter.
(b) Prior Subject to Section 7.6(c), prior to the Closing, Parent shall not, and Buyer shall not permit Merger Sub to, agree to or permit any terminationtermination (other than in accordance with its terms), amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Debt Commitment Letter or Definitive Debt Financing Agreements without Seller’s prior written consent if such termination, amendment, replacement replacement, supplement, modification or modification waiver would reasonably be expected (iA) reduces reduce the aggregate amount of the Financing or debt financing contemplated by the Debt Commitment Letter; (iiB) imposes impose new or additional conditions or other terms otherwise expand, amend or otherwise modifies modify any of the conditions to the receipt of the Financing or other terms debt financing contemplated by the Debt Commitment Letter, in each case, in a manner that would reasonably be expected to (x) materially delay or prevent the Closing Closing; or (yC) make adversely impact the timely funding ability of Buyer to enforce its rights against the Financing other parties to the Debt Commitment Letter; provided, that the Debt Commitment Letter may be amended, replaced, supplemented or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) otherwise modified to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who that had not executed the Debt Commitment Letter as of the date hereof of this Agreement and in connection therewith, amend the economics and other arrangements with respect to the appointment of such existing and additional lenders, lead arrangers, bookrunners, syndication agents or to reassign titles to such parties who had executed the Commitment Letter as of the date hereofsimilar entities. Upon any such amendment, replacement replacement, supplement or modification, the term terms “Debt Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Debt Commitment Letter or applicable Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. Parent Buyer shall promptly deliver to the Company Seller copies of any such amendment, replacement replacement, supplement or other modification of the Debt Commitment Letter.
Appears in 1 contract
Financing and Financing Cooperation. (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 necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect and enforce the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunderthereunder (provided, that the Commitment Letter may be amended, supplemented, modified and replaced as permitted by clauses (b) and (c) of this Section 5.11); (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis and in a manner that will not impede the ability of the parties to consummate the Merger in advance of the End Date all conditions applicable to Parent and Finance Sub to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and any definitive agreements executed in connection therewith within Parent’s control (other than any condition where the Definitive Debt Financing Agreements; failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise to comply with its obligations under this Agreement) and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing Financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on with respect to the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Finance Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided, that Parent and Finance Sub may, without the Company’s prior written consent, (x) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification that would not (i) reduces reduce the aggregate amount of the Financing or contemplated by the Commitment Letter, (ii) imposes new adversely alter or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of expand the Financing Conditions contemplated by the Commitment Letter, (iii) impair the ability of Parent or other terms in a manner that would Finance Sub to enforce their rights under the Commitment Letter, or (iv) otherwise reasonably be expected to (x) prevent, materially delay or prevent materially impede the Closing consummation of the Financing contemplated by the Commitment Letter or the Merger; (y) make amend, replace, supplement or otherwise modify the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof of this Agreement so long as any such addition would not reasonably be expected to prevent, materially delay or to reassign titles to such parties who had executed materially impede the consummation of the Financing contemplated by the Commitment Letter as of or the date hereofMerger and (z) implement or exercise the “flex” provisions contained in one or more fee letters related to the Financing contemplated by the Commitment Letter. Upon any such amendment, replacement replacement, supplement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement replacement, supplement or other modification or waiver of the Commitment Letter.
Appears in 1 contract
Samples: Merger Agreement (Airgas Inc)
Financing and Financing Cooperation. (a) Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and use reasonable best efforts to do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the proceeds of the Financing contemplated by the Commitment Letters sufficient to fund the Merger Consideration, Company OP Common Unit Payment Amount and Company OP Series A Preferred Unit Payment Amount (provided, for the avoidance of doubt, that if any Special Dividend, Additional Dividend or any REIT Dividend is paid pursuant to Section 5.15(b), then as such amounts reduced pursuant Section 5.15(b)) and the other Merger Amounts (taking into account any other financing that does not include any conditions to the consummation of such financing that are more onerous than the conditions set forth in the Debt Commitment Letter as of the date of this Agreement, cash on hand or available source of cash) on or prior to the Closing Date on the terms (including, as necessary, the “flex” provisions contained in any related fee letters) and conditions described in the Commitment LetterLetters, including using reasonable best efforts toincluding: (i) causing the Equity Investors to maintain in effect the Equity Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunderLetter; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to maintaining in effect the funding of the Financing (including the Financing Conditions) set forth in the Debt Commitment Letter and the Definitive Debt Financing AgreementsLetter; and (iii) negotiate negotiating and enter entering into definitive debt financing agreements (which, with respect to the bridge facility documentation, to the extent necessary, shall not be required unless and until reasonably necessary in connection with the funding of the Debt Financing) on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon ; and (iv) satisfying on a timely basis, and in a manner that will not impede the reasonable request ability of the Companyparties to consummate the Merger upon the date which the Merger is required to be consummated pursuant to the terms hereof, all conditions to the funding of the Financing set forth in the Commitment Letters and the Definitive Debt Financing Agreements and complying with their respective obligations thereunder. Parent and Merger Sub shall comply with their obligations, and enforce their rights, under the Commitment Letters and Definitive Debt Financing Agreements in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in any Commitment Letter or any Definitive Debt Financing Agreement (other than the consummation of the Mergers) have been satisfied, Parent and Merger Sub shall use reasonable best efforts to cause the Lenders and the Equity Investors thereunder to comply with their respective obligations thereunder, including to fund the Financing (including by promptly commencing a litigation proceeding against any Equity Investor or any breaching Lender or other financial institution to compel such Equity Investor or such Lender or breaching institution to provide its portion of the Financing or otherwise comply with its obligations under the applicable Commitment Letter or Definitive Debt Financing Agreement). Parent shall keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter Letters and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterLetters and/or Definitive Debt Financing Agreements. Without limiting the generality of the foregoing, Parent and Merger Sub shall promptly notify the Company in writing if there exists any actual or, to the knowledge of Parent or Merger Sub, threatened, breach, default, repudiation, cancellation or termination by any party to the Commitment Letters or any Definitive Debt Financing Agreement and a copy of any written notice or other written communication received by Parent or Merger Sub or any of their respective Representatives from any Lender, Equity Investor or other financing source with respect to any such actual or threatened breach, default, repudiation, cancellation or termination by any party to the Commitment Letters or any Definitive Debt Financing Agreement of any provision thereof. Notwithstanding the foregoing or anything to the contrary herein, compliance by Parent and Merger Sub with this Section 5.11(a) shall not relieve Parent or Merger Sub of its obligations to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
(b) Prior to the ClosingNone of Parent, Parent shall not, and shall not permit or Merger Sub shall, without the prior written consent of the Company: (i) permit any amendment or modification to, agree to or permit any terminationwaiver of any provision or remedy under, amendment, replacement or other modification of the Commitment Letter Letters or the Definitive Debt Financing Agreements if such termination, amendment, replacement modification, waiver or modification remedy (iA) adds new (or adversely modifies any existing) conditions to the consummation of all or any portion of the Financing, (B) reduces the aggregate amount of the Financing, (C) adversely affects the ability of Parent or Merger Sub to enforce its rights against other parties to the Commitment Letters or the Definitive Debt Financing Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (D) would otherwise reasonably be expected to prevent, impede or delay the consummation of the Mergers and the other transactions contemplated by this Agreement; or (ii) imposes new terminate any Commitment Letter or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Definitive Debt Financing or other terms in a manner Agreement; provided that would reasonably be expected to (x) delay or prevent the Closing or Parent and Merger Sub may (y) make amend the timely funding of Debt Commitment Letters or the Definitive Debt Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Agreements to add lenders, lead and other arrangers, bookrunners, syndication and other agents or similar other entities who had not executed the Commitment Letter Letters as of the date hereof of this Agreement and (z) subject to compliance with Section 5.11(c), replace all or to reassign titles to such parties who had executed the Commitment Letter as any part of the date hereofDebt Financing with Alternative Financing but only to the extent doing so would not have any of the effects described in clauses (A), (B), (C) or (D) above. Upon any such amendment, replacement amendment or modification, the term “Debt Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Debt Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced amended or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement replacement, supplement or other modification of the Debt Commitment Letter.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessaryreasonably necessary or advisable to arrange, advisable consummate and cause and enforce the funding of the Debt Financing or properany other Transaction Financing in lieu of all or a portion of the Debt Financing, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: including:
(i) maintain in effect the Debt Commitment Letter, not replace or substitute the Debt Commitment Letter without the Company’s written consent, and not permit any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy amendment or if applicable use reasonable best efforts to cause modification to be satisfied (ormade to, not consent to any waiver of any provision or remedy under, the Debt Commitment Letter, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, such amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such terminationsupplement, amendmentmodification, replacement or modification waiver: (iA) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing) to an amount less than the amount necessary to consummate the transactions contemplated by this Agreement, (iiB) changes any of the terms of, or substitutes any of the debt financing sources for, or imposes new or additional terms or conditions or other terms otherwise expands, amends or otherwise modifies any of terms of, or the conditions to the receipt of, the Debt Financing, in each case in respect of the Financing or other terms this clause (B) in a manner that would reasonably be expected to (x1) materially delay or prevent the Closing or Closing, (y2) make the timely funding of the Debt Financing (or satisfaction of the conditions to obtaining the Financing materially Debt Financing) less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent occur or (B3) adversely impact the ability of Parent LLC to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed enforce its rights against other parties to the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive the definitive agreements with respect to the Debt Financing when required pursuant to this Agreement, as applicableor (C) changes, as so amendedreplaces or substitutes the left lead arranger in respect of the Debt Financing. At the Company’s request, replaced or modifiedParent shall keep the Company reasonably apprised of the status of the Transaction Financing. Parent shall promptly deliver notify Company of any amendments, supplements, modifications, or waivers of the Debt Financing, and shall promptly furnish to the Company copies of any agreements or other documentation with respect to such amendment, replacement supplement, modification, or waiver;
(ii) complying in all material respects with the Financing Documents, paying all fees and other modification amounts when due and owing in respect of the Debt Financing, and using reasonable best efforts to satisfy on a timely basis all conditions to the Debt Financing that are within its control including by negotiating in good faith the definitive documentation for the Debt Financing; and
(iii) using reasonable best efforts to, in the event that the conditions set forth in Section 6.1 and Section 6.2 have been satisfied or, upon funding would be satisfied, and to the extent the proceeds of the Debt Financing are necessary for Parent to fund its payment obligations under this Agreement, fully enforce its rights under the Financing Documents, to the extent entered into prior to the Closing, and to cause the Debt Financing to be funded in the full amount of the Debt Financing (or such lesser amounts as shall be necessary for Parent to fund its payment obligations under this Agreement) at or prior to the Closing. Upon any amendment, supplement, modification, waiver or replacement of the Debt Commitment Letter in accordance with this Section 5.17(a), all references herein to “Debt Commitment Letter.” shall include and mean such documents as so amended, replaced, supplemented or modified in accordance with this Section 5.17(a) and references to
Appears in 1 contract
Samples: Merger Agreement (Cactus, Inc.)
Financing and Financing Cooperation. (a) Parent shall, and shall cause the Borrowers and certain of their Subsidiaries who shall be guarantors under the Financing, in each case to, use its reasonable best efforts to take, take (or cause to be taken) all actions, all actions and do, to do (or cause to be done, ) all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by on the terms and subject to the conditions set forth in the Commitment Letter on or prior as promptly as possible such that as of the Closing, Parent shall consummate the Financing, including by using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Closing Date Financing (the “Financing Documents”) on the terms and conditions described contained in the Commitment LetterLetter or on other terms (subject to the limitations contained in this Section 8.3(a)) that would not reasonably be expected to prevent or delay the Integrated Mergers, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt other Transactions or the date on which the Financing Agreements and comply with its obligations thereundercould be obtained or make the timely funding of the full amount of the Financing less likely to occur; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parentboth Parent and the Company, seek a waiver of) on a timely basis all conditions in any Financing Documents and otherwise comply with all of its obligations thereunder; (iii) maintain in effect the Commitment Letter and any Financing Documents until the Financing is consummated or this Agreement is terminated in accordance with its terms; (iv) subject to clause (ii), assuming that all conditions contained in the Commitment Letter have been satisfied, consummate the Financing on a timely basis and satisfy all obligations of each of Parent or Merger Sub pursuant to this Agreement; and (v) enforce the Borrower’s rights under the Commitment Letter and/or any Financing Documents (as applicable) in the event of a breach by any counterparty thereto that could reasonably be expected to prevent or delay the consummation of the Transactions. Parent and the Merger Subs shall comply with their obligations, and enforce their rights, under the Commitment Letter and Financing Documents in a timely and diligent matter. Parent shall give the Company prompt oral and written notice of any breach or default by any party to any Financing Documents or any Alternative Financing (as defined below), in each case of which it has become aware, and any purported termination or repudiation by any party to any Financing Documents or any Alternative Financing, in each case of which it has become aware, or upon receipt of written notice of any dispute or disagreement between or among the parties to any Financing Documents or any Alternative Financing or any Financing Source. Neither Parent, nor any Subsidiary of Parent, shall amend, waive or modify any material provision of the Commitment Letter, except as contemplated by Section 2 thereof (or the terms and conditions of the Financing referred to therein) without the consent of the Company. Furthermore, notwithstanding the foregoing, in no event shall Parent (or any Subsidiary of Parent) amend, supplement, terminate, waive or otherwise modify the Commitment Letter, except as contemplated by Section 2 thereof (or the terms and conditions of the Financing referred to therein), in any manner, if such amendment, supplement, termination, waiver or other modification shall (A) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of available financing, (B) impose new or additional conditions precedent or expand upon the conditions precedent to the Financing or adversely amends or modifies any of the conditions of the Financing, (C) materially delay, prevent or impede the timely funding of the Financing (including or the satisfaction of the conditions to the Financing) or the consummation of the Integrated Mergers or the other Transactions, (D) adversely impact the ability of any of Parent or the Merger Subs to enforce its rights against the other parties to the Commitment Letter or the Financing ConditionsDocuments and/or (E) set forth shorten the length of the commitment period provided in the Commitment Letter and Letter, in each case, without the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request written consent of the Company. In each case, promptly upon the Company’s request to Parent, Parent shall (1) provide to the Company information in reasonable detail about copies, as and when available, of all substantially final drafts and executed definitive agreements for the Financing Documents (excluding any provisions related solely to fees and other economic terms), and (2) keep the Company reasonably informed of the status of its efforts to arrange arrange, negotiate and close the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterFinancing.
(b) Prior In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in any Financing Documents (or such other terms reasonably satisfactory to each of Parent and the ClosingCompany), each of Parent and the Company shall not, use reasonable best efforts to promptly arrange to obtain alternative financing (“Alternative Financing”) from alternative sources in an equivalent amount (on terms and shall not permit Merger Sub to, agree conditions taken as a whole no less favorable to or permit any termination, amendment, replacement or other modification of Parent and the Company (and their respective Subsidiaries) than the terms and conditions under the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms as in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of effect on the date hereof)). Upon In such event (except as otherwise set forth herein, and except for purposes of Section 5.18), the term “Financing” as used in this Agreement shall be deemed to include any such amendment, replacement or modification, Alternative Financing and the term “Commitment Letter” and “Definitive Debt Financing Agreement” as used in this Agreement shall mean be deemed to include any amendment to the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver entered into in accordance with the terms hereof and any commitment letters entered into with respect to the Company copies of any such amendment, replacement or other modification of the Commitment LetterAlternative Financing.
Appears in 1 contract
Samples: Merger Agreement (WillScot Mobile Mini Holdings Corp.)
Financing and Financing Cooperation. (a) Parent and Merger Sub shall use its their reasonable best efforts to take, and shall cause each of their respective Subsidiaries to use their respective reasonable best efforts to take, or cause to be taken, all actions actions, and do, or cause to be done, all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the proceeds of the Financing contemplated by in an amount sufficient to fund the Commitment Letter Financing Amounts on or prior the date on which the Merger is required to be consummated pursuant to the Closing Date on the terms and conditions described in the Commitment Letterhereof, including by using reasonable best efforts to: to (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; Letters, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in any related fee letter) and without any Prohibited Modification, (iii) satisfy on a timely basis all conditions required to be satisfied by them in the Commitment Letters and the Definitive Agreements and complying with their obligations thereunder and (iv) enforce their respective rights under the Commitment Letters and the Definitive Agreements in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in the Commitment Letters or if applicable the Definitive Agreements (other than the consummation of the Merger, those conditions that by their nature are to be satisfied or waived at the Closing and those conditions the failure of which to be satisfied is attributable to a breach by Parent and/or Merger Sub of its representations, warranties, covenants or agreements contained in this Agreement, and other than, with respect to the Debt Financing, the availability of the Equity Financing and, with respect to the Equity Financing, the availability of the Debt Financing) have been satisfied, Parent shall fully enforce the counterparties’ obligations under the Commitment Letters and cause the Equity Investors to, and shall use reasonable best efforts to cause the Debt Financing Entities to, comply with their respective obligations thereunder, including to be satisfied (or, if deemed advisable by fund the Financing. Neither Parent, seek a Merger Sub nor any of their respective Subsidiaries shall, without the prior written consent of the Company: (i) permit, consent to or agree to any amendment, replacement, supplement, termination or modification to, or any waiver of, any provision or remedy under, the Commitment Letters or the Definitive Agreements if such amendment, replacement, supplement, modification, waiver or remedy (A) on a timely basis all adds new (or adversely modifies any existing) conditions to the funding consummation of all or any portion of the Financing, (B) reduces the aggregate principal amount of the Financing (including below the amount necessary to satisfy the Financing ConditionsAmounts (taking into account available cash of the Company and its Subsidiaries (if any)), (C) adversely affects the ability of Parent or Merger Sub to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified relative to the ability of Parent to enforce its rights against the other parties to the corresponding Commitment Letters as in effect on the date of this Agreement or (D) could otherwise reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement (the effects described in clauses (A) through (D), collectively, the “Prohibited Modifications”); or (ii) terminate or cause the termination of the Commitment Letters (except to the extent the Financing Amounts are funded into escrow, such escrow arrangement does not constitute or effect any Prohibited Modifications and the conditions to release the Financing Amounts therefrom are no more onerous than the conditions set forth in the Debt Commitment Letter as of the date hereof) or any Definitive Agreement. Parent and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject Merger Sub shall promptly deliver to the conditions contemplated by Company copies of any amendment, replacement, supplement, termination, modification or waiver to the Commitment Letter (including, if necessary, any “flex” provisions) (Letters and/or Definitive Agreements. Notwithstanding the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Companyforegoing, Parent shall provide or Merger Sub (or their applicable Affiliates) may amend the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Debt Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely related fee letter to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or similar entities other financing sources who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Debt Commitment Letter as of the date hereof, provided the foregoing does not constitute or effect a Prohibited Modification or (B) make any modification to comply with the “market flex” provisions contained in the fee letters related to the Debt Commitment Letter.
(b) In the event that any portion of the Debt Financing required to pay the Financing Amounts becomes unavailable, regardless of the reason therefor, Parent and Merger Sub shall (i) promptly notify the Company in writing of such unavailability and the reason therefor and (ii) subject to the last sentence of this Section 5.11(b), use reasonable best efforts, and cause each of their respective Subsidiaries to use their respective reasonable best efforts, to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing for such unavailable portion from the same or alternative sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing, to pay the Financing Amounts and, without limiting the foregoing, shall use reasonable best efforts to cause such Alternative Financing to not include any Prohibited Modifications. Upon Parent shall provide the Company with prompt written notice (i) of any such amendmentactual breach, replacement default, cancellation, termination or modificationrepudiation by any party to the Commitment Letters, any Definitive Agreement or the term Guarantee of which Parent becomes aware and (ii) upon receipt of any written notice or other written communication from any Debt Financing Entity or any Equity Investor or other financing source with respect to any actual breach, default, cancellation, termination or repudiation by any party to the Commitment Letters, any Definitive Agreement or the Guarantee of any provision thereof. Parent shall keep the Company informed on a reasonably current basis or upon request of the status of its efforts to consummate the Financing, including any Alternative Financing. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 5.11 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, Parent or Merger Sub to pay any fees or any interest rates applicable to the Debt Financing in excess of those contemplated by the Debt Commitment Letter (after giving effect to the “market flex” provisions), or agree to terms materially less favorable to Parent, Merger Sub or the Company than the terms contained in or contemplated by the Debt Commitment Letter (after giving effect to the “market flex” provisions) (in either case, whether to secure waiver of any conditions contained therein or otherwise).
(c) The foregoing notwithstanding, compliance by Xxxxxx and Merger Sub with this Section 5.11 shall not relieve Parent or Merger Sub of their respective obligations to consummate the transactions contemplated by this Agreement whether or not the Financing or any Alternative Financing is available. To the extent Parent and Merger Sub obtain Alternative Financing or amend, replace, supplement, terminate, modify or waive any of the Commitment Letters or Definitive Agreements, in each case pursuant to this Section 5.11, references to the “Financing,” “Debt Financing,” “Equity Financing” “Debt Financing Entities,” “Debt Financing Parties,” “Debt Commitment Letter,” “Equity Commitment Letter,” “Commitment LetterLetters” and “Definitive Debt Agreements” (and other like terms in this Agreement) shall be deemed to refer to such Alternative Financing, the financing sources and/or their related parties in respect thereof, the commitments thereunder and the agreements with respect thereto, or the Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented, terminated, modified or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letterwaived.
Appears in 1 contract
Samples: Merger Agreement (Barnes Group Inc)
Financing and Financing Cooperation. (a) Parent and Purchaser shall use its their reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things reasonably necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the proceeds of the Financing contemplated by the Commitment Letter on Letters at or prior to the Closing Date Effective Time on the terms (including, as necessary, the flex provisions contained in any related fee letters) and conditions described in the Commitment LetterLetters, including using reasonable best efforts toby: (i) maintain maintaining in effect the Commitment Letter Letters and any Definitive Debt Financing Agreements and comply complying with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter negotiating and the Definitive Debt Financing Agreements; and (iii) negotiate and enter entering into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including, if necessary, any “flex” provisionsflex provisions contained in any related fee letters) (the “Definitive Debt Financing Agreements”). Upon ; and (iii) satisfying on a timely basis all conditions, within the reasonable request control of Parent and Purchaser, to the funding of the CompanyFinancing set forth in the Commitment Letters and the Definitive Debt Financing Agreements and complying with their obligations thereunder. Each of Parent and Purchaser shall comply with its obligations, and enforce its rights, under the Commitment Letters and Definitive Debt Financing Agreements in a timely and diligent manner. Without limiting the generality of the foregoing, in the event that all conditions contained in any Commitment Letters or the Definitive Debt Financing Agreements (other than the consummation of the Acquisition and those conditions that by their nature are to be satisfied on the Closing Date or, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied, each of Parent and Purchaser shall cause the Financing Parties and Equity Investors party thereto to comply with their respective obligations thereunder, including to fund the Financing and to pay related fees and expenses on the Closing Date. Parent shall provide keep the Company information informed on a regular and current basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter Letters and any other financing and shall give the Company prompt notice of (x) any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material an adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterLetters and (y) any actual or threatened breach, default, cancellation, termination or repudiation by any party to the Commitment Letters or Definitive Debt Financing Agreements of which Parent or Purchaser has become aware and shall deliver to the Company copies of any written notice or other written communication from any Financing Party, Equity Investor or other financing source of any such actual or threatened breach, default, cancellation, termination or repudiation.
(b) Prior to the ClosingEffective Time, Parent and Purchaser shall not, and Parent shall not permit Merger Sub Purchaser to, without the Company’s prior written consent: (i) agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any provision under, the Commitment Letters or Definitive Debt Financing Agreements; provided that Parent and Purchaser may, without the Company’s prior written consent, (A) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter Letters or Definitive Debt Financing Agreements if such terminationthat would not, amendmentand would not reasonably be expected to, replacement or modification (ix) reduces reduce the aggregate amount of the Financing or contemplated by the Commitment Letters (iitaken as a whole, and giving effect to any concurrent increase in the amount of commitments under the Equity Commitment Letters) imposes new or additional conditions or other terms or otherwise modifies any of below the conditions amount necessary to pay the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or Acquisition Amounts, (y) make adversely affect the timely funding ability of Parent and/or Purchaser to enforce its rights against any other party to the Commitment Letters or the Definitive Debt Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other thanAgreements, in each case, as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent and/or Purchaser to enforce its rights against the other parties to the Commitment Letters as in effect on the date hereof or (Az) a waiver prevent, delay or impede the consummation of any closing conditions the Acquisition, the Financing or the other transactions contemplated by lender(s) or their agent or this Agreement; and (B) amend, replace, supplement or otherwise modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who that had not executed the Debt Commitment Letter as of the date hereof of this Agreement so long as any such addition would not reasonably be expected to prevent, delay or impede the consummation of the Acquisition, the Debt Financing or the other transactions contemplated by this Agreement, but only, with respect to reassign titles the foregoing clauses (A) and (B), to such parties who had executed the extent doing so would not impose new or additional conditions or expand any existing condition to the amount, receipt or availability of the Financing (any amendment, replacement, supplement or other modification that is prohibited by this Section 4.14(b) without the Company’s prior written consent, a “Prohibited Modification”); or (ii) terminate the Commitment Letter as of Letters or the date hereofDefinitive Debt Financing Agreements. Upon any such amendment, replacement replacement, supplement modification or modificationwaiver, the term “Debt Commitment Letter”, “Equity Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Debt Commitment Letter, Equity Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement replacement, supplement or other modification and/or such waiver of any provision of the Debt Commitment Letter, Equity Commitment Letter and/or Definitive Debt Agreements.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent shall, and shall cause the Borrowers and certain of their Subsidiaries who shall be guarantors under the Financing, in each case to, use its reasonable best efforts to take, take (or cause to be taken) all actions, all actions and do, to do (or cause to be done, ) all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by on the terms and subject to the conditions set forth in the Commitment Letter on or prior as promptly as possible such that as of the Closing, Parent shall consummate the Financing, including by using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Closing Date Financing (the “Financing Documents”) on the terms and conditions described contained in the Commitment LetterLetter or on other terms (subject to the limitations contained in this Section 8.3(a)) that would not reasonably be expected to prevent or delay the Integrated Mergers, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt other Transactions or the date on which the Financing Agreements and comply with its obligations thereundercould be obtained or make the timely funding of the full amount of the Financing less likely to occur; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parentboth Parent and the Company, seek a waiver of) on a timely basis all conditions in any Financing Documents and otherwise comply with all of its obligations thereunder; (iii) maintain in effect the Commitment Letter and any Financing Documents until the Financing is consummated or this Agreement is terminated in accordance with its terms; (iv) subject to clause (ii), assuming that all conditions contained in the Commitment Letter have been satisfied, consummate the Financing on a timely basis and satisfy all obligations of each of Parent or Merger Sub pursuant to this Agreement; and (v) enforce the Borrower’s rights under the Commitment Letter and/or any Financing Documents (as applicable) in the event of a breach by any counterparty thereto that could reasonably be expected to prevent or delay the consummation of the Transactions. Parent and the Merger Subs shall comply with their obligations, and enforce their rights, under the Commitment Letter and Financing Documents in a timely and diligent matter. Parent shall give the Company prompt oral and written notice of any breach or default by any party to any Financing Documents or any Alternative Financing (as defined below), in each case of which it has become aware, and any purported termination or repudiation by any party to any Financing Documents or any Alternative Financing, in each case of which it has become aware, or upon receipt of written notice of any dispute or disagreement between or among the parties to any Financing Documents or any Alternative Financing or any Financing Source. Neither Parent, nor any Subsidiary of Parent, shall amend, waive or modify any material provision of the Commitment Letter, except as contemplated by Section 2 thereof (or the terms and conditions of the Financing referred to therein) without the consent of the Company. Furthermore, notwithstanding the foregoing, in no event shall Parent (or any Subsidiary of Parent) amend, supplement, terminate, waive or otherwise modify the Commitment Letter, except as contemplated by Section 2 thereof (or the terms and conditions of the Financing referred to therein), in any manner, if such amendment, supplement, termination, waiver or other modification shall (A) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of available financing, (B) impose new or additional conditions precedent or expand upon the conditions precedent to the Financing or adversely amends or modifies any of the conditions of the Financing, (C) materially delay, prevent or impede the timely funding of the Financing (including or the satisfaction of the conditions to the Financing) or the consummation of the Integrated Mergers or the other Transactions, (D) adversely impact the ability of any of Parent or the Merger Subs to enforce its rights against the other parties to the Commitment Letter or the Financing ConditionsDocuments and/or (E) set forth shorten the 77 length of the commitment period provided in the Commitment Letter and Letter, in each case, without the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request written consent of the Company. In each case, promptly upon the Company’s request to Parent, Parent shall (1) provide to the Company information in reasonable detail about copies, as and when available, of all substantially final drafts and executed definitive agreements for the Financing Documents (excluding any provisions related solely to fees and other economic terms), and (2) keep the Company reasonably informed of the status of its efforts to arrange arrange, negotiate and close the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterFinancing.
(b) Prior In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in any Financing Documents (or such other terms reasonably satisfactory to each of Parent and the ClosingCompany), each of Parent and the Company shall not, use reasonable best efforts to promptly arrange to obtain alternative financing (“Alternative Financing”) from alternative sources in an equivalent amount (on terms and shall not permit Merger Sub to, agree conditions taken as a whole no less favorable to or permit any termination, amendment, replacement or other modification of Parent and the Company (and their respective Subsidiaries) than the terms and conditions under the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms as in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of effect on the date hereof)). Upon In such event (except as otherwise set forth herein, and except for purposes of Section 5.18), the term “Financing” as used in this Agreement shall be deemed to include any such amendment, replacement or modification, Alternative Financing and the term “Commitment Letter” and “Definitive Debt Financing Agreement” as used in this Agreement shall mean be deemed to include any amendment to the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver entered into in accordance with the terms hereof and any commitment letters entered into with respect to the Company copies of any such amendment, replacement or other modification of the Commitment LetterAlternative Financing.
Appears in 1 contract
Samples: Merger Agreement (WillScot Mobile Mini Holdings Corp.)
Financing and Financing Cooperation. (a) Parent shall use its, and shall cause its controlled Affiliates to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: to (i) maintain in effect and enforce the Commitment Letter and any Definitive Debt Financing Agreements and comply with its Parent’s obligations thereunder; thereunder (provided that the Commitment Letter may be amended, supplemented, modified and replaced as set forth below), (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and any definitive documents executed in connection therewith (other than any condition where the Definitive Debt Financing Agreements; and failure to be so satisfied is a direct result of the Company’s failure to comply with its obligations under this Agreement), (iii) negotiate negotiate, execute and enter into deliver definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) and (iv) in the “Definitive Debt Financing Agreements”). Upon the reasonable request event of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts a failure to arrange fund by the Financing contemplated by Sources in accordance with the Commitment Letter that prevents, impedes or delays the Closing, enforce its rights under the Commitment Letter and any other financing the definitive agreements with respect thereto. Parent shall keep the Company reasonably informed of the status of the Financing and developments with respect thereto and shall give provide to the Company prompt notice copies of all material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent agrees to notify the Company promptly, and in any factevent within three (3) Business Days after the Parent obtains knowledge thereof, change, event if at any time (A) the Commitment Letter shall expire or circumstance be terminated for any reason or (B) any of the other parties to the Commitment Letter notifies Parent that is reasonably likely such party no longer intends to have, individually or in the aggregate, a material adverse impact provide financing on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letterterms set forth therein.
(b) Prior to the Closing, Parent shall not, and shall not permit Purchaser or Merger Sub 2 to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of the Commitment Letter of, or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies waive any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.TABLE OF CONTENTS
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Alexion Pharmaceuticals Inc)
Financing and Financing Cooperation. (a) Parent The Company shall and shall cause the Company Subsidiaries to, and shall use its reasonable best efforts to takecause its and their respective Representatives to, or cause to be taken, provide all actions and do, or cause to be done, all things cooperation that is necessary, customary or advisable to assist Xxxxx in arranging, obtaining and syndicating any of the Financing.
(b) Notwithstanding the foregoing Section 7.19(a), neither the Company nor any of the Company Subsidiaries (nor or proper, in each case, regardless any of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts their respective Representatives) shall be required to: (i) maintain in effect pay any fees or reimburse any expenses prior to the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; Closing for which it has not received prior reimbursement, (ii) satisfy take any action or if provide any assistance that would unreasonably interfere with the conduct of the business of the Company and the Company Subsidiaries, (iii) take any action or provide any information that will conflict with or violate its Organizational Documents, the Company Stockholders Agreement or any applicable material Laws or (in the case of the disclosure of information) would result in the waiver of any legal privilege (provided, however, that the Company shall use its reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions provide an alternative means of disclosing or providing such information to the funding maximum extent permitted by Law or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and if the Company or any of the Financing (including Company Subsidiaries does not provide access or information in reliance on this clause, the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent Company shall provide the Company notice to Buyer that information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall is being withheld on such basis), (iv) give the Company prompt notice of any fact, change, event or circumstance indemnities that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior are effective prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree (v) pass resolutions or consents to approve or permit any termination, amendment, replacement or other modification of authorize the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount execution of the Financing or any definitive agreements with respect thereto prior to the Closing (iiprovided, however, that the Company and the Company Subsidiaries and their respective Representatives shall cooperate with Buyer to replace any officers and directors of the Company and the Company Subsidiaries who will not be employed thereby immediately after the Closing with Persons designated by Buyer and to add any officers and directors designated by Buyer, such replacements and additions to become effective immediately at the Closing), (vi) imposes new or additional conditions cause the execution of any certificates or other terms documents (other than customary authorization and representation letters) by any employee whose employment by the Company or otherwise modifies any of the conditions Company Subsidiaries will terminate prior to or upon the receipt of the Financing Closing, or other terms in a manner (vii) take any action pursuant to this Section 7.19(b) that would reasonably be expected to (x) delay result in personal Liability to a director or prevent the Closing officer. In addition, no action, liability or (y) make the timely funding obligation of the Financing or satisfaction Company, any of the conditions Company Subsidiaries or any of their respective Representatives pursuant to obtaining any certificate, agreement, arrangement, document or instrument (other than customary authorization and representation letters) relating to the Financing materially less likely will be required to occurbe effective until the Closing.
(c) Notwithstanding anything herein or in the Confidentiality Agreement to the contrary, other thanBuyer will be permitted to disclose any information relating to the Company and the Company Subsidiaries and the Transactions to any Financing Parties or prospective Financing Parties (and, in each case, to their respective Representatives) so long as such information is furnished by Buyer subject to customary confidentiality undertakings or arrangements in connection with the Financing. The Company hereby consents to the use of all of its and the Company Subsidiaries’ logos in connection with the Financing, provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Company or the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries, or any of their respective products, services, offerings or intellectual property rights.
(Ad) a waiver Buyer shall promptly, upon written request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees, but excluding the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of the Company Subsidiaries or their respective Representatives in connection with the cooperation of the Company and the Company Subsidiaries and their respective Representatives contemplated by Section 7.19(a), and shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with any cooperation pursuant to Section 7.19(a) and any information used in connection therewith, except with respect to (i) any information provided in writing by the Company or any of the Company Subsidiaries, or any of their respective Representatives, for use in connection with the Financing, or (ii) any fraud, intentional misrepresentation, gross negligence or willful misconduct by any such Persons or breach by any such Persons of their obligations under this Agreement.
(e) The Company shall and shall cause each of the Company Subsidiaries to deliver all notices and take other actions required to facilitate the termination of commitments under the credit agreement set forth on Section 7.19(e) of the Company Disclosure Schedule (the “Company Credit Agreement”), repayment in full of all obligations under the Company Credit Agreement and release of any closing conditions by lender(sLiens and guarantees in connection therewith on the Closing Date. The Company shall, and shall cause the Company Subsidiaries to, furnish to Buyer, no later than one (1) Business Day prior to the Closing Date, customary payoff letters with respect to the Company Credit Agreement (collectively, the “Payoff Letters”) in substantially final form and in form and substance reasonably satisfactory to Buyer from all financial institutions and other Persons to which Indebtedness under the Company Credit Agreement is owed, or their agent the applicable agent, trustee or other representative on behalf of all such Persons, which Payoff Letters shall (Bx) indicate the total amount required to add lendersbe paid under the Company Credit Agreement to fully satisfy all principal, lead arrangersinterest, bookrunnersprepayment premiums, syndication agents penalties, breakage costs or similar entities who had not executed the Commitment Letter other outstanding and unpaid obligations related to such Indebtedness and other obligations as of the date hereof or to reassign titles to Closing Date (each such parties who had executed amount, a “Payoff Amount”), and (y) state that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the Commitment Letter as equity interests in and assets of the date hereof. Upon any Company and each Company Subsidiary shall, substantially concurrently with the receipt of the applicable Payoff Amount on the Closing Date by the Persons holding such amendmentIndebtedness or other obligations, replacement be released and terminated, or modificationarrangements satisfactory to Buyer for such release shall have been made by such time, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreementsubject, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies replacement (or cash collateralization or backstopping) of any such amendment, replacement or other modification then outstanding letters of credit thereunder. The Company Stockholders shall provide to Buyer drafts of the Commitment Letter.Payoff Letters no later than five (5) Business Days prior to the Closing Date. As used in this Agreement:
Appears in 1 contract
Samples: Securities Purchase Agreement (Masonite International Corp)
Financing and Financing Cooperation. (a) Parent shall use its, and shall cause its controlled Affiliates to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: to (i) maintain in effect and enforce the Commitment Letter and any Definitive Debt Financing Agreements and comply with its Parent’s obligations thereunder; thereunder (provided that the Commitment Letter may be amended, supplemented, modified and replaced as set forth below), (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and any definitive documents executed in connection therewith (other than any condition where the Definitive Debt Financing Agreements; and failure to be so satisfied is a direct result of the Company’s failure to comply with its obligations under this Agreement), (iii) negotiate negotiate, execute and enter into deliver definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) and (iv) in the “Definitive Debt Financing Agreements”). Upon the reasonable request event of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts a failure to arrange fund by the Financing contemplated by Sources in accordance with the Commitment Letter that prevents, impedes or delays the Closing, enforce its rights under the Commitment Letter and any other financing the definitive agreements with respect thereto. Parent shall keep the Company reasonably informed of the status of the Financing and developments with respect thereto and shall give provide to the Company prompt notice copies of all material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent agrees to notify the Company promptly, and in any factevent within three (3) Business Days after the Parent obtains knowledge thereof, change, event if at any time (A) the Commitment Letter shall expire or circumstance be terminated for any reason or (B) any of the other parties to the Commitment Letter notifies Parent that is reasonably likely such party no longer intends to have, individually or in the aggregate, a material adverse impact provide financing on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letterterms set forth therein.
(b) Prior to the Closing, Parent shall not, and shall not permit Purchaser or Merger Sub 2 to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its rights under, the Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or Definitive Debt Financing Agreements delayed) if such termination, amendment, replacement replacement, supplement or other modification or waiver (ix) reduces the aggregate amount of the Financing or to an amount that, together with available cash of Parent (iiincluding the cash proceeds of any consummated financing as referred to in clause (c) below) and the committed and available amount of any Alternative Financing, would be less than the amount required to be paid by Parent under this Agreement, (y) imposes new or additional conditions or other terms or otherwise modifies any of the conditions precedent to the receipt of funding the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent otherwise expands the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.conditions
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Synageva Biopharma Corp)
Financing and Financing Cooperation. (a) Unless, and to the extent, Parent and Merger Sub have sufficient cash from other sources sufficient to consummate the Merger, the Transactions and to pay the Cash Consideration, any cash in lieu of fractional Parent Common Shares pursuant to Section 3.13, all other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions and any other related fees and expenses, and for the Refinancing (the "Necessary Financing") (including pursuant to any Alternate Financing or other alternative financing), each of Parent and Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the full amount of the Financing contemplated by (or such portion of the Commitment Letter on Financing as Parent determines to be necessary, together with cash from other sources (including pursuant to any Alternate Financing or prior other alternative financing), to satisfy its obligations under Section 5.28(d) and for the Closing Date Refinancing), on the terms and conditions described in the Commitment LetterLetter (as it may be amended in accordance with the provisions below), including using reasonable best efforts to: (i) maintain in after giving effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth market flex terms in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Redacted Fee Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or (without the written consent of the Company) permit any terminationamendment or modification to be made to (other than to amend the Commitment Letter to add lenders, amendmentco-agents, replacement lead arrangers or other modification similar entities who have not executed the Commitment Letter as of the date hereof or to reassign titles), or any waiver of any provision or remedy under, the Commitment Letter or Definitive Debt Financing Agreements the Redacted Fee Letter, if such termination, amendment, replacement modification or modification waiver (i) reduces the aggregate amount of the Financing (taking into account any Alternate Financing or other alternative financing and any cash from other sources) such that Parent or Merger Sub would be unable to pay (A) the Cash Consideration, (B) any cash in lieu of fractional Parent Common Shares pursuant to Section 3.13 and (C) all other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions, the funding of the Financing on the Closing Date and any other related fees and expenses) or (ii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (xA) materially delay or prevent the Closing Closing, or (yB) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) than a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, the lead arrangers, bookrunners, syndication lenders or agents or similar entities who had (C) relieve any Financing Source of any of its funding commitments under the Commitment Letter without replacement thereof as provided below; provided that Parent shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources and to replace any Financing Sources with any other financing sources and in connection therewith relieve any such replaced Financing Source of all or a portion of its funding commitments under the Commitment Letter; provided, further, that such substitution shall only be permitted if (1) the terms thereof would not executed be reasonably expected to materially delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (2) the conditions to the Financing set forth in the Commitment Letter would not be expanded or modified in a manner that would reasonably be expected to materially delay or prevent the Closing. Any reference in this Agreement to (I) "Financing" shall include the financing contemplated by the Commitment Letter as amended or modified in compliance with this Section 7.10(a) and (II) "Commitment Letter," and "Redacted Fee Letter" shall include such documents as amended or modified in compliance with this Section 7.10(a).
(b) Unless, and to the extent, Parent and Merger Sub have sufficient cash from other sources available to satisfy their obligations under Section 5.28(d) and for the Refinancing (including pursuant to any Alternate Financing or other alternative financing), each of Parent and Merger Sub shall use its commercially reasonable efforts to (i) maintain in effect, and enforce its rights under, the Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and conditions contained in the Commitment Letter, including the market flex provisions in the Redacted Fee Letter and (iii) satisfy (or obtain the waiver of) all conditions within Parent and Merger Sub's control to funding contained in the Commitment Letter and consummate the Financing at or prior to the Closing. Parent and Merger Sub shall inform the Company on a reasonably current basis in reasonable detail of the date hereof status of its efforts to obtain the Financing. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice after becoming aware of (A) any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to reassign titles result in a material breach or default) by any party to the Commitment Letter or any definitive agreement related thereto, (B) any termination of the Financing contemplated by the Commitment Letter and/or (C) the implementation of any of the flex provisions in order to effect all or any portion of the Financing, if such flex provisions would be reasonably expected to prevent or materially delay the Closing.
(c) If, notwithstanding the use of commercially reasonable efforts by Parent to satisfy its obligations under Section 7.10(a) and Section 7.10(b), the Commitment Letter shall expire or be terminated or modified in a manner materially adverse to Parent so as to materially delay or prevent the Closing, for any reason and in whole or in part, prior to the Closing (including as a result of a breach or repudiation), or if any portion of the Financing becomes unavailable (and such portion is necessary for Parent to obtain the Necessary Financing on the terms and conditions contemplated in the Commitment Letter (other than as a result of obtaining substitute debt financing in accordance with Section 7.10(a)) or unless, and to the extent, Parent has sufficient cash from other sources available to satisfy the Necessary Financing (including pursuant to any Alternate Financing or other alternative financing), Parent shall use its commercially reasonable efforts to arrange promptly to obtain alternative financing from alternative sources on terms (including, without limitation, as it relates to economic provisions and the payment of fees, compensation and expenses and any flex provisions contained therein) and in an amount such that the aggregate funds together with other financial resources of Parent and Merger Sub, including any remaining portion of the Financing and any alternative financing, any proceeds from the Healthcare Properties Sale and any other cash on hand and marketable securities of Parent and Merger Sub that would be available to Parent and Merger Sub at the Closing will be sufficient for Parent and Merger Sub to obtain the Necessary Financing (the "Alternate Financing") and to obtain a new financing commitment letter with respect to such parties who had executed Alternate Financing (the "New Commitment Letter"), which shall replace the existing Commitment Letter to the extent such Alternate Financing replaces the Financing. Parent shall promptly notify the Company of such expiration, termination or unavailability referred to in the first sentence of this Section 7.10(c) and the reason therefor, and shall provide a true, correct and complete copy of such New Commitment Letter to the Company (which may include redactions as specified therein). In the event any New Commitment Letter is obtained, (i) any reference in this Agreement to the "Financing" shall mean the financing contemplated by the Commitment Letter as such reference is modified pursuant to clause (ii) below (and include, if applicable, any debt securities issued in lieu of the date hereof. Upon any such amendmentfinancing), replacement or modification, (ii) any reference in this Agreement to the term “"Commitment Letter” and “Definitive Debt Financing Agreement” " shall mean be deemed to include the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of extent that it is not superseded by a New Commitment Letter at the time in question and, to the extent so superseded, the New Commitment Letter to the extent then in effect and (iii) any such amendment, replacement reference in this Agreement to "Redacted Fee Letter" shall be deemed to include any fee or other modification of letter relating to the Commitment LetterLetter that is not superseded by a New Commitment Letter at the time in question and the New Commitment Letter to the extent then in effect.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent Buyer shall, and shall use cause its reasonable best efforts to takeAffiliates and each of their respective officers, or cause to be takendirectors, all actions employees and doagents to, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether consummate the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Equity Financing contemplated by the Commitment Letter on or prior to the Closing Date a timely basis on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Equity Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub any amendment or modification to be made to, agree to or permit any termination, waiver of any provision or remedy under the Equity Commitment Letter if such amendment, replacement modification or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification waiver (i) reduces the aggregate amount of the Financing or Equity Financing, (ii) imposes new or additional conditions or other terms otherwise expands, amends or otherwise modifies any of the conditions to the receipt of any portion of the Equity Financing or other terms in a manner that (iii) would or would reasonably be expected to (xA) delay or prevent the Closing or Closing, (yB) make the timely funding of the Equity Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occuroccur or (C) adversely impact the ability of the Buyer to enforce its rights against the other parties to the Equity Commitment Letter, including any right to seek specific performance of the Equity Commitment Letter. Buyer shall (i) maintain in effect the Equity Commitment Letter until the transactions contemplated by this Agreement are consummated, (ii) comply with its obligations under the Equity Commitment Letter in a timely and diligent manner and (iii) enforce its rights under the Equity Commitment Letter in the event of a breach or other thanfailure to fund the Equity Financing on the Closing Date, including causing the Sponsor to fund the Equity Financing on the Closing Date (it being understood that, notwithstanding anything to the contrary set forth herein, it is not a condition to Closing under this Agreement for the Buyer to obtain the Equity Financing).
(b) If Buyer elects to pursue any debt financing (“Debt Financing”) in each casesupport of the transactions contemplated by this Agreement prior to the Closing Date, Seller shall use commercially reasonable efforts, shall cause the Company to use commercially reasonable efforts, and shall use commercially reasonable efforts to cause their representatives, to provide, at Buyer’s sole cost and expense, all reasonable cooperation requested by Buyer that is customary in connection with the arrangement of the Debt Financing to be incurred in connection with the transactions contemplated by this Agreement, including using commercially reasonable efforts to:
(i) provide all information as may be reasonably requested by Buyer or the Financing Sources and their respective agents and readily available to Seller to prepare customary bank information memoranda, and lender presentations customarily required for financings of the type contemplated by the Debt Financing, to the extent such information relates to the business, financial performance or financial condition of the Company, including providing information reasonably necessary to assist Buyer in the preparation of pro forma financial statements; provided that it is understood that the Company shall not be responsible for preparing any pro forma financial statements or projections and the assumptions underlying the pro forma adjustments to be made are the responsibility of Buyer; and
(ii) participate (including by making members of senior management with appropriate seniority and expertise available to participate) in a reasonable number of meetings, due diligence sessions, presentations, “road shows”, drafting sessions and sessions with the rating agencies in connection with the Debt Financing at reasonable times and with reasonable advance notice; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or the other operations of Seller or any of its Affiliates; provided, further, that none of Seller, the Company or any of its Affiliates shall be required to:
(A) a waiver take or commit to take any action that is not contingent upon the Closing or enter into any agreement, the provisions of any closing conditions by lender(s) which are or their agent or would be binding upon the Company and effective prior to the Closing;
(B) bear any cost or expense, pay any fee or incur any other payment obligation that is not reimbursed by Buyer or agree to add lendersprovide any indemnity on behalf of Buyer or the Company or incur any other liability or obligation that would be effective prior to the Closing and that is not otherwise reimbursed by Buyer;
(C) disclose or provide any information, lead arrangersthe disclosure of which is subject to attorney-client privilege or would result in disclosure of any Trade Secrets or the violation of any confidentiality obligations; or
(D) take any action that could cause any director, bookrunners, syndication agents officer or similar entities who had not executed the Commitment Letter as employee or stockholder of the date hereof Seller or the Company to reassign titles incur personal liability.
(c) All non-public or other confidential information provided by or on behalf of Seller, the Company, any of their respective Affiliates or any of their respective Representatives pursuant to this Section 5.19 shall be kept confidential in accordance with the Confidentiality Agreement, except that Buyer may disclose such parties who had executed information to potential Financing Sources and to rating agencies during the Commitment Letter as syndication and marketing of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” subject to customary confidentiality undertakings by such potential Financing Sources or rating agencies. Buyer shall mean promptly indemnify and hold harmless the Commitment Letter Seller, its Affiliates and its and their respective Representatives from and against, and shall promptly pay and reimburse Seller, its Affiliates and its and their respective Representatives for, any and all (1) costs and expenses incurred in connection with their cooperation pursuant to this Section 5.19 or Definitive the arrangement of the Debt Financing and any information used in connection therewith and (2) claims asserted in connection with the arrangement of the Debt Financing and any information used in connection therewith except in the event such claim arose out of or result from the willful misconduct or, gross negligence of Seller, its Affiliates or any of their respective Representatives. The foregoing indemnification shall survive termination of this Agreement.
(d) Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver Buyer acknowledges and agrees that obtaining any Financing is not a condition to the Company copies of any such amendment, replacement or other modification of the Commitment LetterClosing.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent and Merger Sub shall use its their reasonable best efforts to take, or cause satisfy all of the conditions that are within their control to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on (or, in the event any portion or prior to all of such Financing becomes unavailable or otherwise undesirable, alternative financing (in an amount sufficient, together with the Closing Date on the terms and conditions described in remaining Financing contemplated by the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter if any, and any Definitive Debt Financing Agreements other sources available to Parent and comply with its obligations thereunder; Merger Sub, to fund the payment of the Merger Amount) from the same or other sources) as and to the extent (iibut only to the extent) satisfy or if applicable use reasonable best efforts required to cause to be satisfied (or, if deemed advisable fund the Merger Amount and consummate the transactions contemplated by Parent, seek a waiver of) this Agreement. Parent shall keep the Company informed on a timely reasonably current basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about of the status of its efforts to arrange the Financing contemplated by (or replacement thereof). Without limiting the Commitment Letter and any other financing and generality of the foregoing, Parent shall give the Company prompt notice (i) upon becoming aware of any factactual or potential material breach or default by any party to the Commitment Letter (or any replacement thereof) or definitive agreements related to the Financing and (ii) of the receipt of any notice or other communication from any Person party to any definitive document relating to the Financing (or any replacement thereof) or the Commitment Letter (or any replacement thereof) with respect to any material breach of Parent or any of its Affiliates of its obligations under any such document or letter or default, change, event termination or circumstance that is reasonably likely repudiation by any party to have, individually any such document or letter. Unless the Financing contemplated by the Commitment Letter (or any replacement thereof) becomes unavailable in whole or in part, Parent shall not, without the aggregateprior written consent of the Company, a material adverse impact agree to amend, modify, supplement, restate, substitute or replace the Commitment Letter (or any replacement thereof) if such amendment, modification, supplement, restatement, substitution or replacement (a) materially expands the conditions precedent to the funding on the Closing Date of the Financing necessary as set forth in the Commitment Letter as in effect as of the date hereof (or in such replacement, as applicable) or (b) taking into account the expected timing of the Marketing Period, would reasonably be expected to pay delay or prevent the Merger Amount consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing, if the Financing contemplated by the Commitment Letter (or any replacement thereof) becomes unavailable, Parent shall use its reasonable best efforts to negotiate and enter into definitive documents with respect to alternative financing on terms not less favorable, in any material respect, with respect to conditionality and enforceability, when taken as a whole, than those contained in the Commitment Letter.
(b) Prior to the Closing, Parent The Company shall notand shall cause its Subsidiaries to, and shall not permit use its reasonable best efforts to cause its and their respective Representatives to provide all cooperation that is necessary, customary or advisable and requested by Parent to assist Parent and Merger Sub toSub, agree to or permit in arranging, obtaining and syndicating any termination, amendment, replacement or other modification of the Financing contemplated by the Commitment Letter or Definitive Debt Financing Agreements any other bank financing (or, if such terminationFinancing contemplated by the Commitment Letter becomes unavailable, amendmentwith respect to any replacement Financing) including, replacement or modification without limitation, by:
(i) reduces making senior management and advisors of the aggregate amount Company and its Subsidiaries available to participate at reasonable times in a reasonable number of meetings, presentations (and, if the Financing contemplated by the Commitment Letter becomes unavailable and the replacement thereof consists of a securities offering, roadshows) and due diligence sessions that are requested a reasonable time period in advance with proposed lenders (and, if the Financing contemplated by the Commitment Letter becomes unavailable and the replacement thereof consists of a securities offering, underwriters, initial purchasers or placement agents), and in sessions with rating agencies,
(ii) providing reasonable and timely assistance to Parent and the Financing Entities in their preparation of (1) materials for lender presentations, confidential information memoranda (public and non-public), (and, if the Financing contemplated by the Commitment Letter becomes unavailable and the replacement thereof consists of a securities offering, offering memoranda and prospectuses) and similar documents customary or required in connection with the Financing and (2) customary (for a Financing of the type contemplated by the Commitment Letter or, in the event the Financing contemplated by the Commitment Letter becomes unavailable, any replacement Financing) pro forma financial statements reflecting the Merger and the Financing (it being understood that nothing in this Section 5.14(b)(ii) shall require the Company to prepare any pro forma financial statements)
(iii) as promptly as practicable on an ongoing basis, (A) furnishing Parent and the Financing Entities with (I) the Required Financial Information; (II) the Closing Financial Information, and (III) such other financial and other information relating to the Company and its Subsidiaries as is customary or reasonably necessary for the arrangement, syndication and completion of the Financing of a type contemplated by the Commitment Letter and (B) if the Financing contemplated by the Commitment Letter becomes unavailable, using reasonable efforts to furnish Parent and the Financing Entities with such other financial and other information relating to the Company and its Subsidiaries as is both (1) readily available to the Company and its Subsidiaries or can be obtained or created through the use of reasonable best efforts by the Company and its Subsidiaries and (2) customary or reasonably necessary for the arrangement, syndication and completion of such Financing,
(iv) if requested in writing by Parent at least nine (9) days prior to the Closing Date, furnish to Parent and the Financing Parties all information regarding the Company and its Subsidiaries that is requested by Parent and required in connection with the Financing by regulatory authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, at least three (3) Business Days prior to the Closing Date,
(v) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Parties for the Financing that such information does not contain a material misstatement or omission about the Company and its Subsidiaries and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material non-public information about the Company and its Subsidiaries or its or their securities,
(vi) executing and delivering definitive financing documents, including any pledge and security documents, any loan agreements, guarantees, currency or interest hedging agreements, certificates, and other definitive financing documents, and in each case assisting in the preparation of applicable schedules and other information necessary in connection therewith,
(vii) using reasonable best efforts to facilitate the pledging of collateral (including delivery of stock and other equity certificates of the Company and its Subsidiaries at the Effective Time), and
(viii) promptly notifying Parent and Merger Sub in the event that the Company, any of its Subsidiaries or any of their respective representatives determines that any Required Financial Information that the Company, any of its Subsidiaries or any of their respective representatives has delivered to Parent, Merger Sub or any of the Financing Parties contains any untrue statement of a material fact or omits to state a material fact necessary to make the statements contained therein, taken as a whole, not misleading in light of the circumstances under which made.
(c) The provisions of Section 5.14(b) notwithstanding, nothing in the foregoing Section 5.14(b) will require the Company or any of its Subsidiaries or any of their respective representatives to:
(i) agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent,
(ii) take any action or provide any assistance that would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries,
(iii) take any action or provide any information that will conflict with or violate its organizational documents or any applicable material Laws or (in the case of the disclosure of information) would result in the waiver of any legal privilege (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any of its Subsidiaries does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld),
(iv) give indemnities that are effective prior to the Effective Time for which it is not simultaneously indemnified by Parent,
(v) pass resolutions or consents to approve or authorize the execution of the Financing or any definitive agreements with respect thereto prior to the Effective Time, provided that the Company and its Subsidiaries and their respective representatives shall cooperate with Parent to replace any officers and directors of the Company and its Subsidiaries who will not be employed thereby immediately after Closing with Persons designated by Parent and to add any officers and directors designated by Parent, such replacements and additions to become effective immediately at Closing,
(vi) cause the execution of any certificates or other documents (other than customary authorization and representation letters) by any employee whose employment by the Company or any of its Subsidiaries will terminate prior to or upon Closing, or
(vii) take any action pursuant to this Section 5.14 that would reasonably be expected to result in personal liability to a director or officer. In addition, no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective representatives pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization and representation letters) relating to the Financing will be required to be effective until the Effective Time.
(d) Notwithstanding anything herein or in the Confidentiality Agreement to the contrary, Parent will be permitted to disclose any information relating to the Company and its Subsidiaries and the transactions contemplated by this Agreement to any Financing Parties or prospective Financing Parties (and, in each case, to their respective representatives) so long as such information is furnished by Parent subject to customary confidentiality undertakings or arrangements in connection with the Financing. The Company hereby consents to the use of all of its and its Subsidiaries’ logos in connection with the Financing, provided that such logos are used solely in a manner that is reasonable and customary for such purposes and that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries, or any of their respective products, services, offerings or intellectual property rights.
(e) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of its Subsidiaries or their respective representatives in connection with the cooperation of the Company and its Subsidiaries and their respective representatives contemplated by Section 5.14(a), and shall indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with any cooperation pursuant to Section 5.14(b) and any information used in connection therewith, except with respect to (i) any information provided in writing by the Company or any of its Subsidiaries for use in connection with the Financing or (ii) imposes new any fraud, intentional misrepresentation, gross negligence or additional conditions willful misconduct by any such persons or material breach by any such persons of their obligations under this Agreement.
(f) The Company shall and shall cause each of its Subsidiaries to deliver all notices and take other actions required to facilitate the termination of commitments under the Company Credit Agreements, repayment in full of all obligations under the Company Credit Agreements and release of any Liens and guarantees in connection therewith on the Closing Date. The Company shall, and shall cause its Subsidiaries to, furnish to Parent, no later than one (1) Business Day prior to the Closing Date, customary payoff letters with respect to each of the Company Credit Agreements (the “Payoff Letters”) in substantially final form and in form and substance reasonably satisfactory to Parent from all financial institutions and other Persons to which Indebtedness under the Company Credit Agreements are owed, or the applicable agent, trustee or other terms representative on behalf of all such Persons, each of which Payoff Letter shall (x) indicate the total amount required to be paid under the applicable Company Credit Agreement to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or otherwise modifies any other outstanding and unpaid obligations related to such Indebtedness and other obligations as of the conditions to Closing Date (each such amount, a “Payoff Amount”) and (y) state that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the equity interests in and assets of the Company and each Subsidiary of the Company shall, substantially concurrently with the receipt of the Financing applicable Payoff Amount on the Closing Date by the Persons holding such Indebtedness or other terms in a manner that would reasonably obligations, be expected released and terminated, or arrangements satisfactory to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occurParent for such release shall have been made by such time, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreementsubject, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies replacement (or cash collateralization or backstopping) of any such amendment, replacement or other modification then outstanding letters of the Commitment Lettercredit thereunder.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent Each of Acquiror and Subs shall use its reasonable best efforts to take, take (or cause to be taken) all actions, all actions and do, to do (or cause to be done, ) all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to consummate and obtain the proceeds of the Debt Financing contemplated by the Commitment Letter on or prior to the Closing Date Debt Financing Commitments on the terms and conditions described in the Commitment LetterDebt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to: to (i) maintain negotiate definitive agreements with respect thereto on the terms and conditions (including, if applicable, the flex provisions) contained therein or on other terms not materially less favorable, in effect the Commitment Letter and any Definitive aggregate, to Acquiror than those contained in the Debt Financing Agreements Commitments (as determined in the reasonable judgment of Acquiror) and comply with its obligations thereunder; not in violation of this Section 5.18(a) (including clauses (A)-(C) below), (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by ParentAcquiror, seek a waiver of) on a timely basis all conditions applicable to Acquiror and Subs in the Debt Financing Commitments and otherwise comply with its obligations thereunder and pay related fees and expenses on the Closing Date or otherwise as and when due and payable, (iii) maintain in effect the Debt Financing Commitments in accordance with the terms thereof (except for amendments and supplements not prohibited by this Section 5.18(a)) until the Transactions are consummated or this Agreement is terminated in accordance with its terms, and (iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto. Acquiror shall have the right from time to time to amend, supplement, amend and restate or modify the Debt Financing Commitments; provided, that any such amendment, supplement, amendment and restatement or other modification shall not, without the prior written consent of the Company (A) add new (or adversely modify any existing) conditions precedent to the funding of the Debt Financing (including the Financing Conditions) as set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements Commitments as in effect on the terms and subject to the conditions contemplated by the Commitment Letter date hereof, (including, if necessary, any “flex” provisionsB) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces reduce the aggregate amount of the Debt Financing Commitments (including by changing the amount of fees to be paid or (ii) imposes new or additional conditions or other terms or otherwise modifies any original issue discount of the conditions to Debt Financing as set forth in the receipt of the Debt Financing or other terms Commitments) in a manner that would reasonably adversely impact the ability of Acquiror to consummate the Merger or that would otherwise be expected to delay or impede the Merger or that would result in the inability of Acquiror to make the representation set forth in the last sentence of Section 4.6 after giving effect to any such reduction or (C) otherwise be reasonably expected to (1) prevent, impede or delay the consummation of the Merger and the other Transactions, (2) make the funding of the Debt Financing as set forth in the Debt Financing Commitments less likely to occur or (3) adversely impact the ability of Acquiror or Subs to enforce their rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto. For the avoidance of doubt, Acquiror may amend, supplement, amend and restate, modify or replace the Debt Financing Commitments as in effect at the date hereof (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter Debt Financing Commitments as of the date of this Agreement or (y) to increase the amount of indebtedness contemplated by the Debt Financing Commitments (provided that, when and to the extent drawn, the borrowing of such commitments as so increased would not result in the Acquiror and Subs, on a consolidated basis, failing to be Solvent). For purposes of this Agreement, (i) references to “Debt Financing” shall include (a) the financing contemplated by the Debt Financing Commitments (including any flex provisions applicable thereto) as permitted to be amended, supplemented, replaced, substituted or modified by this Section 5.18(a) (and, if applicable, shall include any Alternative Financing used to satisfy the obligations under this Agreement) and (b) one or more debt securities, credit facility or capital markets financings, including any issuance of equity or equity-linked securities, to be issued or incurred in addition to or in lieu of the financing contemplated by the Commitment Letter, and (ii) references to “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this Section 5.18(a) (and, if applicable, shall include any commitments in respect of Alternative Financing). Acquiror shall (X) give the Company prompt notice of any material breach or default by any party to the Debt Financing Commitments or any Alternative Financing, in each case of which Acquiror has become aware, and any purported termination or repudiation by any party of the Debt Financing Commitments or any Alternative Financing, in each case of which Acquiror has become aware, or upon receipt of written notice of any material dispute or disagreement between or among the parties to the Debt Financing Commitments or any Alternative Financing and (Y) otherwise keep the Company reasonably informed of the status of Acquiror’s efforts to arrange the Debt Financing upon the Company’s reasonable request. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitments, but alternative facilities are available on terms and conditions substantially similar to the Debt Financing Commitments, Acquiror shall use its reasonable best efforts to promptly arrange to obtain alternative financing (“Alternative Financing”) from alternative sources in an amount sufficient to consummate the Transactions; provided, that Acquiror shall use reasonable best efforts to ensure that the terms of such Alternative Financing do not expand upon the conditions precedent or contingencies to the funding of the Debt Financing on the Closing Date as set forth in the Commitment Letter in effect on the date of this Agreement or otherwise include terms (including any “flex” provisions) that would reasonably be expected to prevent, impede or materially delay the consummation of the Transactions. In addition, Acquiror shall have the right to substitute the net cash proceeds received by Acquiror after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) or equity securities by Acquiror for all or any portion of the Debt Financing by reducing commitments under the Commitment Letter; provided, that (v) to reassign titles the extent any such debt has a scheduled special or mandatory redemption right, such right is not exercisable prior to the earlier of the consummation of the Transactions on the Closing Date, the termination of this Agreement or the Termination Date as applicable, (w) such parties who had executed offering or other incurrence of debt does not result in a breach or default under, or violation of, the Commitment Letter, (x) the debt instruments governing any such offering or other incurrence of debt would not be violated by the execution and delivery of the definitive documentation governing the Debt Financing or the Alternative Financing, or the incurrence of the Debt Financing or the Alternative Financing thereunder, (y) the aggregate amount of the Debt Financing committed under the Commitment Letter following such reduction, together with other cash and cash equivalents available to Acquiror, is sufficient to pay all amounts required to be paid in connection with the Transactions and (z) Acquiror promptly notifies the Company of such substitution and reduction. If commitments under the Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 5.18(b) shall no longer be in effect. Further, Acquiror shall have the right to substitute commitments in respect of other debt financings for all or any portion of the Debt Financing from the same and/or alternative bona fide financing sources so long as (u) such other debt financing does not result in a breach or default under, or violation of, the Commitment Letter (to the extent it remains in effect following such substitution), (v) the debt instruments governing any such other debt financings would not be violated by the execution and delivery of the definitive documentation governing the Debt Financing or the Alternative Financing, or the incurrence of the Debt Financing or the Alternative Financing thereunder, (w) the aggregate amount of the Debt Financing, is, together with other cash and cash equivalents available to the Acquiror, at least equal to what it was immediately prior to the substitution of such commitments and in any event is sufficient to pay all amounts required to be paid in connection with the Transactions, (x) all conditions precedent to effectiveness of definitive documentation for such debt financing have been satisfied and the conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to Acquiror than) the conditions precedent set forth in the Commitment Letter, (y) such substitution would not reasonably be expected to delay or prevent or make less likely the funding of the Debt Financing or such other debt financing on the Closing Date and (z) prior to funding of any loans thereunder, the commitments in respect of such debt financing are subject to restrictions on assignment that are in the aggregate substantially equivalent to or more favorable to the Company that the corresponding restrictions set forth in the Commitment Letter, to supplement or replace the Debt Financing. True, correct and complete copies of each amendment or modification to the Commitment Letter relating thereto and documents with respect to each alternative or substitute financing commitment in respect thereof (each, a “New Debt Commitment Letter”), together with all related fee letters (solely in the case of the fee letter, with only the fee amounts, dates, pricing caps, the economic elements of “market flex” and other economic terms redacted) (each, a “New Fee Letter”), will be promptly provided to the Company (and drafts thereof shall be made available to the Company prior to any such substitution). In the event any New Debt Commitment Letter is obtained that complies with the provisions of this Section 5.18 regarding amendments or modifications to the Commitment Letter and regarding documents with respect to alternative or substitute financing commitments, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Commitment Letter as of modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean be deemed to include the Commitment Letter or Definitive which is not superseded by a New Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver Commitment Letter at the time in question and each New Debt Commitment Letter to the Company copies of extent then in effect, and (iii) any such amendment, replacement or other modification of reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Commitment LetterLetter that is not superseded by any New Debt Commitment Letter at the time in question and to each New Debt Commitment Letter to the extent then in effect.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
Financing and Financing Cooperation. (a) Parent and Merger Sub shall use its their commercially reasonable best efforts (taking into account the expected timing of the Marketing Period) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to arrange and obtain the Financing contemplated by the Commitment Letter Letters on or prior to the Closing Date on the terms and conditions described in the Commitment LetterLetters, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter Letters and any Definitive Debt Financing Agreements and comply in accordance with its obligations thereundertheir terms until the funding of the Financing to the Parent on the Closing Date; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter Letters and the Definitive Debt Financing AgreementsAgreements applicable to Parent or one or more of its Affiliates that are within its control; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”) and definitive equity financing agreements on the terms and conditions contemplated by the Equity Commitment Letter (the “Definitive Equity Financing Agreements” and together with the Definitive Debt Financing Agreements, the “Definitive Financing Agreements”). Upon ; and (iv) subject to the reasonable request satisfaction or waiver of the CompanyFinancing Conditions, cause the Debt Financing Sources and Equity Investor, as applicable, to consummate the Financing, and fund the amounts thereunder on the Closing Date. Parent shall provide keep the Company information reasonably informed on a current basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and Financing. Parent shall give the Company prompt written notice after the occurrence of any of the following: (A) any material breach or material default by any party to the Commitment Letters or definitive agreements related to the Financing of which Parent becomes aware; (B) the receipt by Parent or Merger Sub of any written notice or written communication from the Equity Investor or any Debt Financing Source with respect to any breach, default, termination or repudiation by any party to a Commitment Letter or any definitive agreements related to the Financing of any provisions of any Commitment Letter or such definitive agreements; (C) if for any reason, Parent or Merger Sub at any time believes it will not be able to obtain all or any portion of the Financing in an amount sufficient to consummate the Offer, the Merger and the other transactions contemplated by this Agreement; and (D) any fact, change, event or circumstance that is reasonably likely to havewould prevent or materially delay or impede the consummation of the Offer, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount or the Debt Financing contemplated by the Debt Commitment Letter. In the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied and Parent is required to consummate the Closing pursuant to Section 1.4, Parent shall use its commercially reasonable efforts to cause each Debt Financing Source and shall cause the Equity Investor to fund its respective committed portion of the Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date.
(b) Prior to the Closing, Parent and Merger Sub shall not, and Parent shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its rights, provisions or remedies under, the Commitment Letters or Definitive Financing Agreements without the Company’s prior written consent; provided, that Parent and Merger Sub may, without the Company’s prior written consent, (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter or Definitive Debt Financing Agreements if such terminationthat would not, amendmentand would not reasonably be expected to, replacement or modification (i) reduces reduce the aggregate amount of the Debt Financing below an amount, together with the Equity Financing and any available cash of the Company and its Subsidiaries, required to pay the Merger Amounts, or prevent, materially delay or impede the consummation of the Offer, the Merger or the Debt Financing contemplated by the Debt Commitment Letter; and (ii) imposes amend, replace, supplement or otherwise modify the Debt Commitment Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities that had not executed the Debt Commitment Letter as of the date hereof so long as any such addition would not reasonably be expected to prevent, materially delay or impede the consummation of the Offer, the Merger or the Debt Financing contemplated by the Debt Commitment Letter, but only, with respect to the foregoing clauses (i) and (ii), to the extent doing so would not (x) impose new or additional conditions or other terms expand, amend or otherwise modifies modify any of the conditions existing condition to the receipt and availability of the Debt Financing or other terms in a manner that would reasonably be expected to (x) prevent or materially delay or prevent impede the ability of Parent to consummate the Closing or (y) make adversely impact the timely funding ability of the Financing Parent or satisfaction of the conditions to obtaining the Financing materially less likely to occurMerger Sub, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.as
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent Each of Buyer and Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Debt Financing contemplated by the Commitment Letter on or prior to the at Closing Date on the terms and conditions described in the Debt Commitment Letter (provided that Buyer and Merger Sub may amend, restate, supplement or otherwise modify the Debt Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessarywithout limitation, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof of this Agreement or (y) to reassign titles implement any flex provisions applicable thereto so long as, in each case, taking into account the expected timing of the Marketing Period, such action would not reasonably be expected to (i) delay or prevent the Closing, (ii) reduce the aggregate principal amount of the financing below the amount necessary (after giving effect to any other debt and cash on hand) to consummate the transactions contemplated hereby, (iii) impose additional conditions that would reasonably be expected to make the Debt Financing, in an amount necessary (together with any other debt and cash on hand) to consummate the Closing, less likely to be obtained or (iv) materially and adversely impact the ability of the Buyer to enforce its rights under the Debt Commitment Letter), including using commercially reasonable efforts to (1) take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable in connection therewith, (2) maintain in effect the Debt Commitment Letter for as long as the transactions contemplated by this Agreement are required to be consummated, (3) taking into account the expected timing of the Marketing Period, satisfy on a timely basis all conditions applicable to Buyer and Merger Sub in the Debt Commitment Letter that are within their control and otherwise comply in all material respects with its obligations thereunder, (4) negotiate definitive agreements with respect thereto on the terms and conditions (including, to the extent the same are exercised, the flex provisions) contemplated by the Debt Commitment Letter or on other terms acceptable to Buyer that would not (I) reduce the aggregate amount of the Debt Financing or (II) impose new or additional conditions precedent to the receipt of the Debt Financing, in the case of this clause (II) in a manner that, taking into account the expected timing of the Marketing Period, would reasonably be expected to delay or prevent the Closing Date, (5) if all of the conditions to funding in the Debt Commitment Letter and all of the conditions to Buyer’s and Merger Sub’s obligations under Section 7.01 and Section 7.02 (other than those conditions that, by their terms, will be satisfied on the Closing Date) have been satisfied or waived, consummate the Debt Financing at Closing and (6) so long as the conditions in the immediately preceding clause (5) have been satisfied, enforce their rights under the Debt Commitment Letter. Without limiting the generality of the foregoing, Buyer and Merger Sub shall give the Company prompt notice: (A) of any material breach or default by any party to the Debt Commitment Letter; (B) of the receipt of any written notice or other written communication from any Debt Financing Source with respect to any (x) breach, default, termination or repudiation of the Debt Commitment Letter by any party to the Debt Commitment Letter or (y) material dispute between or among Buyer, on the one hand, and the Debt Financing Sources, on the other hand, with respect to the availability of the Debt Financing; (C) if for any reason Buyer or Merger Sub believes in good faith that (x) there is a material dispute between or among Buyer, on the one hand, and the Debt Financing Sources, on the other hand, with respect to the availability of the Debt Financing or (y) there is a material possibility that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter; and (D) if for any reason any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter; provided that neither Buyer nor any of its Affiliates shall be under any obligation to disclose any information to the extent that (1) such parties who had executed information is subject to attorney-client or similar privilege (but only if such privilege is asserted in good faith) or (2) the disclosure of which would be prohibited or restricted by applicable Law. As soon as reasonably practicable, but in any event within three (3) Business Days, after the date the Company delivers to Buyer or Merger Sub a written request, Buyer and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B), (C) or (D) of the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Commitment Letter, Buyer shall use its commercially reasonable efforts to 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; it being understood that Buyer shall have no obligation to accept terms that are materially less favorable, taken as a whole (after taking into account any flex provisions), to Buyer than those included in the Debt Commitment Letter as of the date hereof. Upon Buyer shall keep the Company reasonably informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing (subject to any applicable restrictions in the Debt Commitment Letter). For purposes of this Agreement, the definitions of “Debt Commitment Letter,” “Debt Financing” and related definitions shall include the Debt Commitment Letter and, if entered into prior to Closing, any document related thereto as the same may be amended, waived, modified or replaced pursuant to this Section 5.18(a).
(b) Until the earlier of the Effective Time or the termination of this Agreement pursuant to Article IX, the Company shall use commercially reasonable efforts (and the Company shall cause each of its Subsidiaries to use commercially reasonable efforts) to provide, and shall use each of their respective commercially reasonable efforts to cause its Representatives to provide, in each case, with Buyer’s reimbursement of reasonable out-of-pocket costs and expenses incurred in connection therewith (in accordance with the reimbursement provisions of Section 10.01), all customary cooperation reasonably requested by Buyer and that is necessary in connection with arranging and obtaining the Debt Financing (or, if applicable, any permitted replacement, amended, modified or alternative financing) (provided that such requested cooperation is consistent with applicable Law), including using commercially reasonable efforts in connection with (i) furnishing Buyer and the Debt Financing Sources the Company Financing Information, (ii) participating in a reasonable number of meetings at reasonable times (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and members of senior management and representatives of the Company), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing, in each case with reasonable advance notice, (iii) assisting Buyer and the Debt Financing Sources with the preparation of (A) offering documents and confidential information memoranda for any portion of the Debt Financing (including the “Information Materials” as defined in the Debt Commitment Letter) and (B) reasonable and customary materials for rating agency presentations, bank information memoranda (including the delivery of one or more customary representation and authorization letters) and similar documents reasonably and customarily required in connection with the Debt Financing (including the delivery of any consents of accountants for use of their reports), (iv) executing and delivering any pledge and security documents and otherwise facilitating the pledging of collateral, (v) obtaining accountant’s comfort letters, local counsel opinions, landlord consents, deposit account control agreements, waivers and estoppels, surveys and title insurance reasonably requested by Buyer and customary for financings similar to the Debt Financing and obtaining third party consents in connection with the Debt Financing, and, if applicable, in extinguishing existing Indebtedness of the Company and its Subsidiaries and releasing Encumbrances securing any such amendmentIndebtedness, replacement or modificationin each case, to take effect at the term “Commitment Letter” Closing, (vi) assisting Buyer and “Definitive the Debt Financing Agreement” shall mean Sources in the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver completion of a physical inventory with respect to the Company copies and its Subsidiaries’ inventories for the purposes of their review of collateral granted pursuant to the Debt Financing or otherwise and taking all actions reasonably necessary to permit the Debt Financing Sources to conduct audit examinations, appraisals and other evaluations with respect to the Company’s current assets and other collateral, and to evaluate its cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements, (vii) ensuring that the syndication efforts of the Debt Financing Sources benefit materially from existing banking relationships of the Company and (viii) at least three Business Days prior to the Closing Date, providing all documentation and other information about the Company as is reasonably requested in writing by Buyer at least seven Business Days prior to the Closing Date in connection with the Debt Financing and that relates to applicable “know your customer” and anti-money laundering rules and regulations, including the USA Patriot Act; provided, however, that, notwithstanding anything to the contrary set forth in this Agreement, (a) irrespective of the above, no obligation of the Company or any of the Subsidiaries under any certificate, document or instrument referenced in subsection (iv) or (v) above (other than the authorization letters referred to above and deliverable prior to Closing) shall be effective until the Closing occurs and none of the Company or any of the Subsidiaries shall be required to take any action under any certificate, document or instrument that is not contingent upon the Closing or that would be effective prior to the Closing, (b) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or the Subsidiaries in any material respect, (c) none of the Company or any of the Subsidiaries shall be required to issue any offering document, (d) none of the Company or any of the Subsidiaries shall be obligated to provide (and Buyer and Merger Sub shall not disclose) any information about the Company or the Subsidiaries to the extent that (1) such information is subject to attorney-client or similar privilege (but only if such privilege is asserted in good faith) or (2) the disclosure of which would be prohibited or restricted by applicable Law, and (e) no personal liability shall be imposed on the officers, directors, managers, employers or agents involved; provided, further, that neither the Company nor any of the Subsidiaries shall be required to bear any cost or expense or pay any commitment fee or other fee or payment to obtain consent or to incur any liability (other than a liability (x) that is contingent upon the Closing occurring or (y) in respect of which the Buyer has agreed to provide reimbursement, including, without limitation, pursuant to this Section 5.18 or Section 10.01 hereof) or to provide or agree to provide any indemnity with respect to the Debt Financing prior to the Effective Time, or any of the foregoing that would be treated as a Company Transaction Expense. Buyer shall indemnify and hold harmless the Company, the Subsidiaries and their respective Representatives and Affiliates from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Debt Financing (including any action taken in accordance with this Section 5.18(b)) and any information utilized in connection therewith (other than the Company Financing Information and the historical information relating to Company or the Subsidiaries provided by Company in writing specifically for use in the marketing materials for the Debt Financing), except to the extent arising out of the gross negligence or willful misconduct of the Company or any of the Subsidiaries. Whether or not the Closing Date occurs, Buyer shall reimburse the Company in connection with the cooperation of the Company and the Subsidiaries contemplated by this Section 5.18(b) in accordance with Section 10.01. All material non-public information provided by the Company or any of the Subsidiaries or any of their representatives pursuant to this Section 5.18 shall be kept confidential, except that Buyer shall be permitted to disclose such information to its advisors, the Debt Financing Sources and the affiliates, employees, representatives, agents and advisors of any such amendmentDebt Financing Source and other potential sources of capital, replacement or other modification rating agencies and prospective lenders and investors during syndication of the Commitment LetterDebt Financing or any permitted replacement, amended, modified or alternative financing subject to the potential sources of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities). The Company hereby consents to the reasonable use of its and the Subsidiaries’ names, marks and logos in connection with the Debt Financing; provided that such names, marks and logos are used solely in a manner that is not intended or not reasonably likely to harm or disparage the Company or any of the Subsidiaries. Notwithstanding anything to the contrary in this Agreement, the Company shall not be deemed in default due to a breach of its obligations under this Section 5.18 unless such breach materially contributed to a failure to obtain the Debt Financing.
Appears in 1 contract
Samples: Merger Agreement (Nn Inc)
Financing and Financing Cooperation. (a) Parent shall, and shall cause the Borrowers and its and their Subsidiaries and Representatives, in each case to, use its commercially reasonable best efforts to take, take (or cause to be taken) all actions, all actions and do, to do (or cause to be done, ) all things necessary, proper or advisable or propersuch that prior to the Closing, Parent may consummate the Financing, including by using commercially reasonable efforts to (i) negotiate and enter into definitive agreements with respect to the Financing (the “Financing Documents”) (in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by case on terms and conditions taken as a whole not less favorable than those described in the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunderdate hereof); (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parentboth Parent and the Company, seek a waiver of) on a timely basis all conditions to the funding in any Financing Documents that are within its control and otherwise comply with all of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreementsits obligations thereunder; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information maintain in reasonable detail about the status of its efforts to arrange the Financing contemplated by effect the Commitment Letter and any other financing Financing Documents until the Financing is consummated or this Agreement is terminated in accordance with its terms; (iv) assuming that all conditions contained in the Commitment Letter have been satisfied, consummate the Financing; and (v) enforce Parent’s rights under the Commitment Letter and/or any Financing Documents (as applicable) in the event of a breach by any counterparty thereto that would reasonably be expected to prevent the refinancing of the Company Credit Agreement, Parent Credit Agreement and Company Notes at the Closing. Parent shall give the Company prompt oral and written notice of any factmaterial breach or default by any party to any Financing Documents or any Alternative Financing (as defined below), change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall noteach case of which it has become aware, and any purported termination or repudiation by any party to any Financing Documents or any Alternative Financing, in each case of which it has become aware, or upon receipt of written notice of any material dispute or disagreement between or among the parties to any Financing Documents or any Alternative Financing or any Financing Source. Neither Parent, nor any Subsidiary of Parent, shall not permit Merger Sub toamend, agree to waive or permit modify any termination, amendment, replacement or other modification material provision of the Commitment Letter (or Definitive Debt the terms of the Financing Agreements referred to therein) without the consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Furthermore, notwithstanding the foregoing, in no event shall Parent (or any Subsidiary of Parent) amend, supplement, terminate, waive or otherwise modify the Commitment Letter, in any manner, if such amendment, supplement, termination, amendment, replacement waiver or other modification shall (iA) reduces reduce (or have the effect of reducing) the aggregate amount of the Financing or available financing, (iiB) imposes impose new or additional conditions precedent or other terms or otherwise modifies any of expand upon the conditions precedent to the receipt of Financing as set forth in the Financing or other terms existing Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the Closing or Closing, (yC) make shorten the timely funding length of the Financing or satisfaction of commitment period provided in any Commitment Letter and/or (D) change the conditions to obtaining the Financing materially less likely to occurfees, other thaninterest rates, maturity date and/or eligibility and/or availability criteria, in each case, without the written consent of the Company. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in any Financing Documents (Aor such other terms reasonably satisfactory to each of Parent and the Company), each of Parent and the Company shall use commercially reasonable efforts to promptly arrange to obtain alternative financing in the form of an ABL credit facility (“Alternative Financing”) from alternative sources in an equivalent amount (on terms and conditions taken as a waiver of any closing whole no less favorable to Parent and the Company (and their respective Subsidiaries) than the terms and conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed under the Commitment Letter (as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of in effect on the date hereof)). Upon In such event (except as otherwise set forth herein, and except for purposes of Section 5.28), the term “Financing” as used in this Agreement shall be deemed to include any such amendment, replacement or modification, Alternative Financing and the term “Commitment Letter” and “Definitive Debt Financing Agreement” as used in this Agreement shall mean be deemed to include any amendment to the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver entered into in accordance with the terms hereof and any commitment letters entered into with respect to the Company copies of any such amendment, replacement or other modification of the Commitment LetterAlternative Financing.
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Financing and Financing Cooperation. (a) Parent Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to consummate and obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment LetterLetter or terms not less favorable (taken as a whole) to Acquiror by the Closing, including using reasonable best efforts to: to (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply in all material respects with its obligations thereunder; under the Commitment Letter, (ii) satisfy or if applicable use on a timely basis (including using reasonable best efforts to cause the Marketing Period to be satisfied (orcompleted prior to February 8, if deemed advisable by Parent2013, seek a waiver ofsubject to the receipt of the Required Information) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and or the Definitive Debt Financing Agreements; definitive financing agreements and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, including after giving effect to any “market flex” provisionsprovisions in connection with the Financing), or terms and conditions not less favorable (taken as a whole) (the “Definitive Debt Financing Agreements”)to Acquiror. Upon the reasonable request of the Company, Parent Acquiror shall provide keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by Financing. Without limiting the Commitment Letter and any other financing and effect of the foregoing, Acquiror shall give the Company prompt notice of (i) any factmaterial breach or default by any other party to the Commitment Letter of which Acquiror becomes aware, change(ii) the receipt of any written notice with respect to any actual or potential breach, event default, termination or circumstance that is reasonably likely repudiation by any party to have, individually the Commitment Letter or in any provision thereof or any material dispute or disagreement between or among any parties to the aggregate, a material adverse impact on Commitment Letter with respect to the obligations to fund the Financing necessary or the amount of the Financing to pay be funded at the Merger Amount contemplated by Closing, and (iii) the expiration or termination for any reason of the Commitment Letter.
(b) Prior to the Closing, Parent Acquiror shall not, and shall not permit Merger Acquisition Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that Acquiror and Acquisition Sub may, without the Company’s prior written consent (x) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies that does not contain any of the conditions to the receipt of the Financing or other terms in a manner provisions that would reasonably be expected to (x) prevent, materially delay or prevent materially impede the Closing or (y) make the timely funding consummation of the Financing or satisfaction of the conditions to obtaining Transactions; and (y) amend the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof of this Agreement so long as any such addition would not reasonably be expected to prevent, materially delay or to reassign titles to such parties who had executed materially impede the Commitment Letter as consummation of the date hereofFinancing or the Transactions. Upon any such amendmentFor the avoidance of doubt, replacement each of Acquiror or modificationAcquisition Sub may, if it so determines in its discretion, arrange for alternative financing for the term Transactions from a third party or parties (and thereafter the “Commitment Letter” and “Definitive Debt Financing” as defined herein shall refer to such financing commitment) on terms and conditions not less favorable to the Acquiror (taken as a whole), if such alternative financing does not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Transactions.
(c) In the event any portion of the Financing Agreement” shall mean becomes unavailable on the terms and conditions described in or contemplated by the Commitment Letter (including after giving effect to any “market flex” provisions in connection with the Financing) for any reason, Acquiror shall use its reasonable best efforts to arrange and obtain alternative financing from the same or Definitive Debt alternative sources (the “Alternative Financing”) in an amount sufficient and on terms and conditions not less favorable (taken as a whole) than those described in the Commitment Letter to enable Acquiror to fund the payment of the cash component of the aggregate Merger Consideration. If an Alternative Financing Agreementis required in accordance with this Section 6.9(c), Acquiror shall provide the Company with a copy of any new financing commitment (redacted for confidential terms) that provides for such Alternative Financing, and thereafter the “Commitment Letter” as defined herein shall refer to such financing commitment in respect of the Alternative Financing.
(d) Prior to the Effective Time, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, at the sole expense of Acquiror, provide such reasonable cooperation in connection with any financing by Acquiror or any of its Affiliates in connection with the Transactions as may be reasonably requested by Acquiror or its Representatives. Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use their reasonable best efforts upon request of Acquiror to on a timely basis (taking into account the expected timing of the commencement of the Marketing Period) (i) furnish the report of the Company’s auditor on the most recently available audited consolidated financial statements of the Company and its Subsidiaries and use its reasonable best efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice and use reasonable best efforts to cause such auditor to provide customary comfort letters to the underwriters, initial purchasers or placement agents, as applicable, as so amendedin connection with any such financing; (ii) furnish any financial statements, replaced schedules or modified. Parent shall promptly deliver other financial data or information relating to the Company copies and its Subsidiaries reasonably requested by Acquiror or its Representatives as may be reasonably necessary to consummate the Financing or the Alternative Financing, including financial statements, financial data, pro forma financial statements, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering, to consummate the offering(s) of debt securities and convertible debt contemplated by the Commitment Letter, or as otherwise reasonably required in connection with the Financing or Alternative Financing and the Transactions or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt securities contemplated by the Commitment Letter (all such information in these clauses (i) and (ii),the “Required Information); (iii) facilitate contact between (x) senior management and advisors, including auditors, of the Company and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or Acquiror’s or any of its Affiliate’s auditors in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available, at reasonable times and upon reasonable advance notice, the necessary employees and advisors of the Company and its Subsidiaries to provide reasonable assistance with the preparation of business projections, financing documents and offer materials by Acquiror and its Affiliates; (v) obtain the reasonable cooperation and assistance of counsel to the Company and its Subsidiaries in providing customary legal opinions; (vi) provide customary information, documents, authorization letters, opinions and certificates, enter into agreements (including supplemental indentures) and take other actions that are or may be customary in connection with the financing or necessary or desirable to permit Acquiror or any of its Affiliates to fulfill conditions or obligations under the financing documents; (vii) provide reasonable assistance in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Acquiror or any of its Affiliates; (viii) use commercially reasonable efforts to assist Acquiror in ensuring that the syndication efforts benefit from the existing banking relationships of the Company and its Subsidiaries; (ix) permit the reasonable use by Acquiror and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of financing (subject to advance review of and consultation with respect to such use); (x) reasonably participate as necessary in meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as applicable (including the reasonable participation in such meetings by the Company’s senior management); (xi) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals and participating in a reasonable number of sessions with rating agencies; (xii) taking all actions reasonably necessary to (A) permit prospective financing providers to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lockbox arrangements in connection with the foregoing; (xiii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Acquiror (including a certificate of the chief financial officer of the Company or one or more of its Subsidiaries with respect to solvency matters) and otherwise facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral, and obtaining surveys and title insurance as reasonably requested by Acquiror; and (xiv) not commence or effect any offering, placement or arrangement of any debt securities or bank financing competing with the proposed financing of Acquiror and its Affiliates (and not permit any such offering, placement or arrangements to occur on its behalf); provided that (x) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other fee or incur any other liability or obligation in connection with the Financing or any Alternative Financing or to take any action that would be prohibited by any applicable Law or cause a default of, or breach under, or otherwise violate any Material Contract, in each case except for any payment, incurrence or action that is conditioned upon, and shall not take effect until, the Effective Time, and (y) no obligations of the Company or any of its Subsidiaries under any certificate, document or instrument delivered pursuant to this Section 6.9(d) shall be effective until the Effective Time. All material non-public information regarding the Company and its Subsidiaries provided to Acquiror, Acquisition Sub and their Representatives and Affiliates pursuant to this Section 6.9(d) shall be kept confidential in accordance with the Confidentiality Agreement.
(e) The Company shall use reasonable best efforts to (i) obtain customary payoff letters from third-party lenders and trustees with respect to the Indebtedness of the Company and its Subsidiaries specified in Section 6.9(e) of the Company Disclosure Letter no later than ten Business Days prior to the Effective Time and (ii) deliver or cause to be delivered such payoff letters to Acquiror at the Effective Time. At the Effective Time, subject to Acquiror making available necessary funds to do so, the Company shall use all reasonable best efforts to, and to cause its Subsidiaries to, permanently (x) terminate the credit facilities specified in Section 6.9(e) of the Company Disclosure Letter and all related contracts to which the Company or any of its Subsidiaries is a party and (y) cause to be released any Encumbrances on its assets relating to such terminated credit facilities.
(f) Notwithstanding anything in this Section 6.9 to the contrary, in fulfilling its obligations pursuant to Section 6.9(d) and Section 6.9(e), (i) none of the Company, its Subsidiaries or its Representatives or Affiliates shall be required to pay any commitment or other fee, provide any security or incur any other liability in connection with any financing prior to the Effective Time, (ii) any cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, and (iii) Acquiror shall reimburse the Company or cause the Company to be reimbursed for all reasonable and documented out-of-pocket costs and expenses (including the reasonable attorneys’ fees of outside counsel) incurred by the Company or any of its Subsidiaries in connection with the actions and cooperation pursuant to this Section 6.9. Acquiror shall indemnify and hold harmless the Company, its Subsidiaries and their Representatives from and against any and all losses or damages actually suffered or incurred by them in connection with the arrangement of any such amendmentfinancing (other than to the extent related to information provided by the Company, replacement its Subsidiaries or their Representatives).
(g) Notwithstanding anything contained in this Agreement to the contrary but without limiting the effect of Section 9.12, Acquiror expressly acknowledges and agrees that Acquiror’s and Acquisition Sub’s obligations hereunder are not conditioned in any manner upon Acquiror’s or Acquisition Sub’s obtaining any financing.
(h) If (i) all of the conditions set forth in Section 7.1 and Section 7.2 (other modification than any condition that by its nature cannot be satisfied until the Closing but that is expected to be satisfied at the Closing) have been satisfied or waived and (ii) the Marketing Period shall have ended, then Acquiror shall draw down on (A) the Term Facility (as such term is defined in the Commitment Letter) and (B) the Additional Revolver (as such term is defined in the Commitment Letter), in each case to the extent such funds are available pursuant to the terms of the Commitment Letter. In the event that (x) all or any portion of the Financing contemplated to be raised in lieu of the Bridge Facility (as such term is defined in the Commitment Letter) has not been consummated at the end of the Marketing Period and (y) all of the conditions set forth in Section 7.1 and Section 7.2 (other than any condition that by its nature cannot be satisfied until the Closing but that is expected to be satisfied at the Closing) have been satisfied or waived, then Acquiror shall draw down on the Bridge Commitment to the extent such funds are available pursuant to the terms of the Commitment Letter. In the event that (1) the Revolver Amendment (as such term is defined in the Commitment Letter) has not been obtained at the end of the Marketing Period and (2) all of the conditions set forth in Section 7.1 and Section 7.2 (other than any condition that by its nature cannot be satisfied until the Closing but that is expected to be satisfied at the Closing) have been satisfied or waived, then Acquiror shall enter into the Backstop Revolver (as such term is defined in the Commitment Letter) and draw down on the Backstop Revolver to the extent such funds are available pursuant to the terms of the Commitment Letter an amount sufficient and necessary, when combined with cash on hand and any additional borrowings, to consummate the Merger and the other transactions contemplated by this Agreement at Closing.
Appears in 1 contract
Financing and Financing Cooperation. (a) From the date of this Agreement, the Company shall, and shall cause the Company Subsidiaries and their respective Representatives to, provide such cooperation as is reasonably requested by Parent, is reasonably and customarily necessary in connection with the Debt Financing and is customarily provided for issuers in financings of the type contemplated by the Debt Commitment Letter, but limited to, using commercially reasonable efforts to (i) furnish to Parent (x) the Required Information and (y) such other customary financial information with respect to the Company and the Company Subsidiaries as may be reasonably requested by the Parent as is necessary for Parent to prepare the materials referred to in clause (vii) below (including the pro forma financial information and pro forma financial statements contemplated by Paragraph 5 of Exhibit C of the Debt Commitment Letter (provided that, for the avoidance of doubt, the Company and the Company Subsidiaries shall not be required to provide, and Parent shall be solely responsible for, the preparation of pro forma financial statements)), (ii) provide Parent all documentation and other information with respect to the Company and the Company Subsidiaries within three Business Days prior to the Closing Date as shall have been reasonably requested in writing (including by email) by Parent at least ten Business Days prior to the Closing Date that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Patriot Act and 31 C.F.R. § 1010.230, and that are required by Paragraph 7 of Exhibit C of the Debt Commitment Letter as in effect on the date hereof, (iii) deliver, or cause the applicable Company Subsidiary to deliver, necessary prepayment and/or termination notices in accordance with the terms of each of the Company Credit Facilities (provided that such prepayment and termination notices may be conditioned on the occurrence of the Closing), (iv) reasonably facilitate the pledging of collateral and the provision of guarantees, in each case, only to the extent such pledge or guaranty is a condition in the Debt Commitment Letter to the funding of the Debt Financing on the Closing Date, (v) executing and delivering or helping to procure credit agreements, hedging arrangements, notes, mortgages, pledge and security documents, landlord waivers, estoppels, consents, and approvals and other definitive financing documents or other requested certificates or documents, in each case, only to the extent that delivery of such documents is a condition in the Debt Commitment Letter to the funding of the Debt Financing on the Closing Date (in each case, subject to and only effective upon the occurrence of the Closing), (vi) cause members of its senior management, representatives and advisors to participate in a reasonable number of meetings, conference calls, presentations and roadshows with prospective lenders and investors, due diligence sessions (including accounting due diligence sessions), drafting sessions and sessions with the ratings agencies, in all such cases upon reasonable advanced notice and at reasonable times and locations mutually agreed upon, and (vii) assist Parent, each Acquisition Sub and the Debt Financing Sources with the preparation of customary bank information memoranda, lender presentations, investor presentations, offering documents, rating agency presentations and similar customary documents required in connection with the Debt Financing, in each case, to the extent such materials relate to information concerning the Company and the Company Subsidiaries and (viii) to the extent required by the Debt Financing Sources, executing and delivering customary authorization letters to the Debt Financing Sources authorizing the distribution of information to prospective lenders, subject to customary confidentiality restrictions and customary exculpatory provisions; provided that such cooperation shall not be required to the extent it would:
(i) require the Company, a Company Subsidiary, or any of their Affiliates or any of its or their Representatives to execute, deliver or enter into, or perform any document (including any agreement, instrument, guaranty, warranty, indemnity or certificate) with respect to the Debt Financing that is not contingent upon the Closing or that would be effective prior to Closing (other than the authorization and representation letters referred to above),
(ii) cause any director or officer to incur any personal liability (including that no member of the Company Board, or the board of directors of any Company Subsidiary or any of its or their Affiliates shall be required to enter into any resolutions or take any similar action approving the Financing until the Closing has occurred),
(iii) require the delivery of any financial statements in a form or subject to a standard different than those provided to Parent on or prior to the date hereof,
(iv) prior to the Closing, (x) pay any commitment or other fee for which the Company, any Company Subsidiary, or any of their Affiliates has not received prior reimbursement or (y) provide any indemnity or security or incur any liability or obligation in connection with the Debt Financing or any other financing,
(v) take or permit the taking of any action that would reasonably be expected to conflict with, result in any violation or breach of, or default (with or without lapse of time, or both) under, any Organizational Documents of the Company, any Company Subsidiary, or any of their Affiliates, or any applicable Legal Requirements or Contracts of the Company, any Company Subsidiary, or any of their Affiliates,
(vi) require any cooperation to the extent that it would materially or unreasonably interfere with the business or operations of the Company, any Company Subsidiary, or any of their Affiliates, or
(vii) require the Company, any Company Subsidiary, or any of their Affiliates to make any representation, warranty or certification that, in the good faith determination of the Company, any Company Subsidiary, or any of their Affiliates, is not true.
(b) Parent agrees that in no event shall Company, any Company Subsidiary, or any of their Affiliates be required to execute or deliver any documents in connection with the Debt Financing which is not conditioned upon, and shall become effective from and after, the Closing. Parent shall indemnify and hold harmless the Company, each Company Subsidiary, and each of their Affiliates and its and their respective Representatives from and against any and all liabilities, losses, damages, claims and reasonable out-of-pocket costs and expenses (including reasonable attorney’s fees) interest, awards, judgments, losses and penalties suffered or incurred in connection with any and all of the matters contemplated by this Section 4.14 (other than the use of any information provided by the Company, any Company Subsidiary, or any of their Affiliates or any of its or their Representatives, in each case, in writing for use in connection with the Debt Financing) or in connection with the arrangement of the Debt Financing or any information utilized in connection therewith, except to the extent arising from fraud, gross negligence or willful misconduct by any of Company, any Company Subsidiary, or any of their Affiliates or any of its or their Representatives, whether or not the transactions are consummated or this Agreement is terminated. As a condition to the Company and the Company Subsidiaries obligations pursuant to this Section 4.14, Parent shall promptly, upon request by the Company or a Company Subsidiary, reimburse the Company, the Company Subsidiaries and their Affiliates for all reasonable and documented out-of-pocket costs and expenses (including reasonable and documented attorney’s fees and expenses and disbursements) incurred by the Company, any Company Subsidiary, or any of their Affiliates or its and their Representatives in connection with the cooperation contemplated by this Section 4.14. All non-public information regarding Company and its Affiliates provided to Parent, its Affiliates or its Representatives pursuant to this Section 4.14 shall be kept confidential by them, except for disclosure to potential lenders, investors, rating agencies or their respective Representatives in connection with the Debt Financing subject to customary confidentiality provisions including exercising commercially reasonable best efforts to make Company an express third-party beneficiary to the confidentiality agreement. The obligations in this clause (b) shall survive the termination of this Agreement.
(c) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter and any Definitive Debt Financing Agreements and comply in accordance with its obligations thereunder; terms, (ii) negotiate definitive financing agreements with respect to the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter (taking into account any “market flex” provisions), so that such agreements are in effect as promptly as practicable but in any event no later than the Closing Date, (iii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions Financing Conditions on the Closing Date applicable to Parent or the funding Parent Subsidiaries and under the control of Parent or the Parent Subsidiaries and (iv) consummate on the Closing Date the Debt Financing required to consummate the transactions contemplated hereby in accordance with the terms of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (includingwhich, if necessaryfor the avoidance of doubt, any “flex” provisions) (shall include agreeing to consummate the “Definitive Debt Financing Agreements”even if any flex rights are exercised to their maximum extent). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub the Acquisition Subs (without the prior written consent of the Company) to agree to, agree to or permit permit, any terminationamendment or modification of, amendmentor waiver under, replacement or other modification of the Debt Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification that (i) reduces the aggregate amount of the Debt Financing or to an amount such that the Closing could not be consummated, (ii) imposes new any additional (or additional conditions or other terms or otherwise adversely modifies any existing) condition precedent to the availability of the conditions to the receipt of the Debt Financing or other terms in a manner that would could reasonably be expected to adversely affect (xincluding with respect to timing) the ability or likelihood of Parent or the Company to timely consummate the transactions contemplated by this Agreement, (iii) would otherwise reasonably be expected to prevent, impede or delay or prevent the funding on the Closing Date of the Debt Financing required to consummate the transactions contemplated by this Agreement, or (yiv) make would adversely impact the timely funding ability of the Financing Acquisition Subs or satisfaction of their respective Affiliates to enforce their rights against the conditions other parties to obtaining the Financing materially less likely to occur, other thanDebt Commitment Letter or the definitive agreements with respect thereto and shall, in each case, (A) a waiver be deemed to be material for purposes of any closing conditions by lender(s) this Agreement; provided, that the Acquisition Subs may, without the Company’s prior written consent, amend, replace, supplement or their agent or (B) otherwise modify the Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who that had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Debt Commitment Letter as of the date hereof. Upon any such amendment, replacement replacement, supplement or modification, the term “Debt Commitment Letter” shall refer to the Debt Commitment Letter as so amended, replaced, supplemented or otherwise modified.
(d) Parent shall keep Company informed on a reasonably current basis and “Definitive in reasonable detail of the status of Parent’s efforts to arrange the Debt Financing Agreement” and promptly provide to Company copies of all definitive documents related to the Debt Financing contemplated by the Debt Commitment Letters. In the event that, in the reasonable opinion of Parent, all conditions applicable to each of the Debt Commitment Letters have been satisfied, Parent shall mean use commercially reasonable efforts to cause the lenders and the other Persons providing such Debt Financing contemplated by the Debt Commitment Letters to fund the Debt Financing contemplated by the Debt Commitment Letters required to consummate the transactions contemplated by this Agreement on or prior to the Closing Date. The Parent shall promptly notify the Company (A) of any breach (or threatened breach) or default by any party to the Debt Commitment Letter or Definitive definitive agreements related to the Debt Financing Agreementof which Parent or any of its Affiliates becomes aware, (B) of the receipt by Parent, any of the Parent Subsidiaries (including the Acquisition Subs) of any written notice or communication from any Debt Financing Source with respect to any breach (or threatened breach) or default, or any termination or repudiation, in each case by any party to the Debt Commitment Letter or any definitive document related to the Debt Financing 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 necessary to consummate the transactions contemplated by this Agreement and pay all related fees and expenses payable by Parent hereunder on the terms, in the manner or from the sources contemplated by the Debt Commitment Letters. Parent shall promptly, but in any event within three days of the date of a written request from the Company, provide any information reasonably requested by Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence.
(e) If the Debt Financing required to consummate the transactions contemplated by this Agreement becomes unavailable under the Debt Commitment Letter or any definitive agreements with respect thereto, as applicable, Parent shall, and shall cause the Parent Subsidiaries to, as so amendedpromptly as practicable following the occurrence of such event, replaced use its or modifiedtheir reasonable best efforts to obtain substitute financing sufficient, together with other financial resources available to Parent, to consummate the Merger (any such financing, a “Substitute Financing”). Parent shall promptly deliver In the event any Substitute Financing is obtained, references in this Agreement to the Company copies Debt Financing shall also be deemed to refer to such Substitute Financing, and references in this Agreement to the Debt Commitment Letter and the definitive financing agreements with respect thereto shall also be deemed to refer to the Substitute Financing and the definitive financing agreements with respect thereto, and all obligations of any such amendmentParent pursuant to this Section 4.14 shall be applicable thereto as to the same extent as Parent’s obligations with respect to the Debt Financing.
(f) Parent and each Acquisition Sub expressly acknowledges and agrees that, replacement notwithstanding anything in this Agreement to the contrary, their obligations hereunder, including their obligation to consummate the Closing, are not subject to, or other modification conditioned on, receipt of the Commitment LetterDebt Financing or any Substitute Financing.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
Financing and Financing Cooperation. (a) Parent Buyer shall use its reasonable best efforts to take, take (or cause to be taken) all actions, all actions and do, to do (or cause to be done, ) all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to consummate and obtain the proceeds of the Debt Financing contemplated by the Commitment Letter on or prior to the Closing Date Debt Financing Commitments on the terms and conditions described in the Commitment LetterDebt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to: to (i) maintain negotiate definitive agreements with respect thereto on the terms and conditions (including, if applicable, the flex provisions, if any) contained therein or on other terms not less favorable to Buyer than those contained in effect the Commitment Letter and any Definitive Debt Financing Agreements Commitments and comply not in violation of this Section 6.18(a) (including clauses (A)-(C) below) and enter into any necessary definitive agreements prior to the termination of the Debt Financing Commitments in accordance with its obligations thereunder; the terms and condition of the Debt Commitment Letter, (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by ParentBuyer, seek a waiver of) on a timely basis all conditions applicable to the funding of the Financing (including the Financing Conditions) set forth Buyer in the Commitment Letter and the Definitive Debt Financing Agreements; Commitments and otherwise comply with its obligations thereunder and pay related fees and expenses on the Closing Date or otherwise as and when due and payable, (iii) negotiate and enter into definitive debt financing agreements on maintain in effect the Debt Financing Commitments in accordance with the terms thereof (except for amendments and subject to supplements not prohibited by this Section 6.18(a)) and for termination in accordance with the conditions contemplated by terms thereof upon execution of the Commitment Letter (including, if necessary, any “flex” provisions) (definitive documentation in respect of the “Definitive Debt Financing Agreements”). Upon in accordance with the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if Commitments, provided such termination, amendment, definitive documentation provides for replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional such terminated commitments with superseding commitments under such definitive documentation on terms and conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.comply with this
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Clearwater Paper Corp)
Financing and Financing Cooperation. (a) Parent Acquiror shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to consummate and obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment LetterLetter or terms not less favorable (taken as a whole) to Acquiror by the Closing, including using reasonable best efforts to: to (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply in all material respects with its obligations thereunder; under the Commitment Letter, (ii) satisfy or if applicable use on a timely basis (including using reasonable best efforts to cause the Marketing Period to be satisfied (orcompleted prior to February 8, if deemed advisable by Parent2013, seek a waiver ofsubject to the receipt of the Required Information) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and or the Definitive Debt Financing Agreements; definitive financing agreements and (iii) negotiate and enter into definitive debt financing agreements with respect thereto on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, including after giving effect to any “market flex” provisionsprovisions in connection with the Financing), or terms and conditions not less favorable (taken as a whole) (the “Definitive Debt Financing Agreements”)to Acquiror. Upon the reasonable request of the Company, Parent Acquiror shall provide keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by Financing. Without limiting the Commitment Letter and any other financing and effect of the foregoing, Acquiror shall give the Company prompt notice of (i) any factmaterial breach or default by any other party to the Commitment Letter of which Acquiror becomes aware, change(ii) the receipt of any written notice with respect to any actual or potential breach, event default, termination or circumstance that is reasonably likely repudiation by any party to have, individually the Commitment Letter or in any provision thereof or any material dispute or disagreement between or among any parties to the aggregate, a material adverse impact on Commitment Letter with respect to the obligations to fund the Financing necessary or the amount of the Financing to pay be funded at the Merger Amount contemplated by Closing, and (iii) the expiration or termination for any reason of the Commitment Letter.
(b) Prior to the Closing, Parent Acquiror shall not, and shall not permit Merger Acquisition Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Commitment Letter without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that Acquiror and Acquisition Sub may, without the Company’s prior written consent (x) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies that does not contain any of the conditions to the receipt of the Financing or other terms in a manner provisions that would reasonably be expected to (x) prevent, materially delay or prevent materially impede the Closing or (y) make the timely funding consummation of the Financing or satisfaction of the conditions to obtaining Transactions; and (y) amend the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof of this Agreement so long as any such addition would not reasonably be expected to prevent, materially delay or to reassign titles to such parties who had executed materially impede the Commitment Letter as consummation of the date hereofFinancing or the Transactions. Upon any such amendmentFor the avoidance of doubt, replacement each of Acquiror or modificationAcquisition Sub may, if it so determines in its discretion, arrange for alternative financing for the term Transactions from a third party or parties (and thereafter the “Commitment Letter” and “Definitive Debt Financing” as defined herein shall refer to such financing commitment) on terms and conditions not less favorable to the Acquiror (taken as a whole), if such alternative financing does not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Transactions.
(c) In the event any portion of the Financing Agreement” shall mean becomes unavailable on the terms and conditions described in or contemplated by the Commitment Letter (including after giving effect to any “market flex” provisions in connection with the Financing) for any reason, Acquiror shall use its reasonable best efforts to arrange and obtain alternative financing from the same or Definitive Debt alternative sources (the “Alternative Financing”) in an amount sufficient and on terms and conditions not less favorable (taken as a whole) than those described in the Commitment Letter to enable Acquiror to fund the payment of the cash component of the aggregate Merger Consideration. If an Alternative Financing Agreementis required in accordance with this Section 6.9(c), Acquiror shall provide the Company with a copy of any new financing commitment (redacted for confidential terms) that provides for such Alternative Financing, and thereafter the “Commitment Letter” as defined herein shall refer to such financing commitment in respect of the Alternative Financing.
(d) Prior to the Effective Time, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, at the sole expense of Acquiror, provide such reasonable cooperation in connection with any financing by Acquiror or any of its Affiliates in connection with the Transactions as may be reasonably requested by Acquiror or its Representatives. Without limiting the generality of the foregoing, the Company shall, and shall cause its Subsidiaries and their respective Representatives to, use their reasonable best efforts upon request of Acquiror to on a timely basis (taking into account the expected timing of the commencement of the Marketing Period) (i) furnish the report of the Company’s auditor on the most recently available audited consolidated financial statements of the Company and its Subsidiaries and use its reasonable best efforts to obtain the consent of such auditor to the use of such report in accordance with normal custom and practice and use reasonable best efforts to cause such auditor to provide customary comfort letters to the underwriters, initial purchasers or placement agents, as applicable, as so amendedin connection with any such financing; (ii) furnish any financial statements, replaced schedules or modified. Parent shall promptly deliver other financial data or information relating to the Company copies and its Subsidiaries reasonably requested by Acquiror or its Representatives as may be reasonably necessary to consummate the Financing or the Alternative Financing, including financial statements, financial data, pro forma financial statements, projections, audit reports and other information of the type required by Regulation S-X and Regulation S-K promulgated under the Securities Act for a registered public offering, to consummate the offering(s) of debt securities and convertible debt contemplated by the Commitment Letter, or as otherwise reasonably required in connection with the Financing or Alternative Financing and the Transactions or as otherwise necessary in order to assist in receiving customary “comfort” (including “negative assurance” comfort) from independent accountants in connection with the offering(s) of debt securities contemplated by the Commitment Letter (all such information in these clauses (i) and (ii),the “Required Information); (iii) facilitate contact between (x) senior management and advisors, including auditors, of the Company and (y) the proposed lenders, underwriters, initial purchasers or placement agents, as applicable, and/or Acquiror’s or any of its Affiliate’s auditors in connection with, the financing, at reasonable times and upon reasonable advance notice; (iv) make available, at reasonable times and upon reasonable advance notice, the necessary employees and advisors of the Company and its Subsidiaries to provide reasonable assistance with the preparation of business projections, financing documents and offer materials by Acquiror and its Affiliates; (v) obtain the reasonable cooperation and assistance of counsel to the Company and its Subsidiaries in providing customary legal opinions; (vi) provide customary information, documents, authorization letters, opinions and certificates, enter into agreements (including supplemental indentures) and take other actions that are or may be customary in connection with the financing or necessary or desirable to permit Acquiror or any of its Affiliates to fulfill conditions or obligations under the financing documents; (vii) provide reasonable assistance in the preparation of one or more confidential information memoranda, prospectuses, offering memoranda and other marketing and syndication materials reasonably requested by Acquiror or any of its Affiliates; (viii) use commercially reasonable efforts to assist Acquiror in ensuring that the syndication efforts benefit from the existing banking relationships of the Company and its Subsidiaries; (ix) permit the reasonable use by Acquiror and its Affiliates of the Company’s and its Subsidiaries’ logos for syndication and underwriting, as applicable, of financing (subject to advance review of and consultation with respect to such use); (x) reasonably participate as necessary in meetings, presentations and road shows with prospective lenders and investors and in drafting sessions and due diligence sessions, as applicable (including the reasonable participation in such meetings by the Company’s senior management); (xi) use commercially reasonable efforts to assist in procuring any necessary rating agency ratings or approvals and participating in a reasonable number of sessions with rating agencies; (xii) taking all actions reasonably necessary to (A) permit prospective financing providers to evaluate the Company’s and its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lockbox arrangements in connection with the foregoing; (xiii) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Acquiror (including a certificate of the chief financial officer of the Company or one or more of its Subsidiaries with respect to solvency matters) and otherwise facilitating the pledging of, and granting, recording and perfection of security interests in share certificates, securities and other collateral, and obtaining surveys and title insurance as reasonably requested by Acquiror; and (xiv) not commence or effect any offering, placement or arrangement of any debt securities or bank financing competing with the proposed financing of Acquiror and its Affiliates (and not permit any such offering, placement or arrangements to occur on its behalf); provided that (x) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other fee or incur any other liability or obligation in connection with the Financing or any Alternative Financing or to take any action that would be prohibited by any applicable Law or cause a default of, or breach under, or otherwise violate any Material Contract, in each case except for any payment, incurrence or action that is conditioned upon, and shall not take effect until, the Effective Time, and (y) no obligations of the Company or any of its Subsidiaries under any certificate, document or instrument delivered pursuant to this Section 6.9(d) shall be effective until the Effective Time. All material non-public information regarding the Company and its Subsidiaries provided to Acquiror, Acquisition Sub and their Representatives and Affiliates pursuant to this Section 6.9(d) shall be kept confidential in accordance with the Confidentiality Agreement.
(e) The Company shall use reasonable best efforts to (i) obtain customary payoff letters from third-party lenders and trustees with respect to the Indebtedness of the Company and its Subsidiaries specified in Section 6.9(e) of the Company Disclosure Letter no later than ten Business Days prior to the Effective Time and (ii) deliver or cause to be delivered such payoff letters to Acquiror at the Effective Time. At the Effective Time, subject to Acquiror making available necessary funds to do so, the Company shall use all reasonable best efforts to, and to cause its Subsidiaries to, permanently (x) terminate the credit facilities specified in Section 6.9(e) of the Company Disclosure Letter and all related contracts to which the Company or any of its Subsidiaries is a party and (y) cause to be released any Encumbrances on its assets relating to such terminated credit facilities.
(f) Notwithstanding anything in this Section 6.9 to the contrary, in fulfilling its obligations pursuant to Section 6.9(d) and Section 6.9(e), (i) none of the Company, its Subsidiaries -71- or its Representatives or Affiliates shall be required to pay any commitment or other fee, provide any security or incur any other liability in connection with any financing prior to the Effective Time, (ii) any cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, and (iii) Acquiror shall reimburse the Company or cause the Company to be reimbursed for all reasonable and documented out-of-pocket costs and expenses (including the reasonable attorneys’ fees of outside counsel) incurred by the Company or any of its Subsidiaries in connection with the actions and cooperation pursuant to this Section 6.9. Acquiror shall indemnify and hold harmless the Company, its Subsidiaries and their Representatives from and against any and all losses or damages actually suffered or incurred by them in connection with the arrangement of any such amendmentfinancing (other than to the extent related to information provided by the Company, replacement its Subsidiaries or their Representatives).
(g) Notwithstanding anything contained in this Agreement to the contrary but without limiting the effect of Section 9.12, Acquiror expressly acknowledges and agrees that Acquiror’s and Acquisition Sub’s obligations hereunder are not conditioned in any manner upon Acquiror’s or Acquisition Sub’s obtaining any financing.
(h) If (i) all of the conditions set forth in Section 7.1 and Section 7.2 (other modification than any condition that by its nature cannot be satisfied until the Closing but that is expected to be satisfied at the Closing) have been satisfied or waived and (ii) the Marketing Period shall have ended, then Acquiror shall draw down on (A) the Term Facility (as such term is defined in the Commitment Letter) and (B) the Additional Revolver (as such term is defined in the Commitment Letter), in each case to the extent such funds are available pursuant to the terms of the Commitment Letter. In the event that (x) all or any portion of the Financing contemplated to be raised in lieu of the Bridge Facility (as such term is defined in the Commitment Letter) has not been consummated at the end of the Marketing Period and (y) all of the conditions set forth in Section 7.1 and Section 7.2 (other than any condition that by its nature cannot be satisfied until the Closing but that is expected to be satisfied at the Closing) have been satisfied or waived, then Acquiror shall draw down on the Bridge Commitment to the extent such funds are available pursuant to the terms of the Commitment Letter. In the event that (1) the Revolver Amendment (as such term is defined in the Commitment Letter) has not been obtained at the end of the Marketing Period and (2) all of the conditions set forth in Section 7.1 and Section 7.2 (other than any condition that by its nature cannot be satisfied until the Closing but that is expected to be satisfied at the Closing) have been satisfied or waived, then Acquiror shall enter into the Backstop Revolver (as such term is defined in the Commitment Letter) and draw down on the Backstop Revolver to the extent such funds are available pursuant to the terms of the Commitment Letter an amount sufficient and necessary, when combined with cash on hand and any additional borrowings, to consummate the Merger and the other transactions contemplated by this Agreement at Closing.
Appears in 1 contract
Samples: Transaction Agreement (Chicago Bridge & Iron Co N V)
Financing and Financing Cooperation. (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 necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the proceeds of the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment LetterLetter (including the exercise of any “market flex” provisions in the related fee letters), including using reasonable best efforts to: (i) maintain in full force and effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunderand conditions thereunder (provided that the Commitment Letter may be amended, supplemented, modified and replaced as set forth below); (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis (or obtain the waiver of and taking into account the expected timing of the Closing) and in a manner that will not impede the ability of the parties to consummate the Merger in advance of the End Date all conditions and covenants applicable to Parent and Merger Sub to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; any definitive agreements executed in connection therewith within Parent’s and Merger Sub’s control to satisfy, (iii) negotiate and enter into into, on or prior to the Closing Date, definitive debt financing agreements with respect to the Financing (and promptly upon execution thereof provide executed copies of such definitive agreements to the Company) on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any the exercise of “market flex” provisionsprovisions in the related fee letters) that are not materially less favorable to Parent and Merger Sub than the terms and conditions (including, if necessary, the exercise of “Definitive Debt market flex” provisions in the related fee letters) contemplated by the Commitment Letter and (iv) consummate the Financing Agreements”)at or prior to the Closing. Upon In the reasonable request event that all Financing Conditions have been or, upon funding of the CompanyFinancing will be, satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the Financing Sources, lenders and the other persons providing or committing to provide the Financing to comply with their obligations under the Commitment Letter and definitive financing agreements and to fund on or before the Closing Date the Financing required to consummate the Merger and the other transactions contemplated by this Agreement. Parent shall keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by and to satisfy the Commitment Letter conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to any other financing and shall give material developments concerning the Company prompt notice status of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay and the Merger Amount contemplated by the Commitment Letterproposed funding date thereunder.
(b) Prior Subject to Section 5.18(d), prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to, permit or consent to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its rights under, the Commitment Letter or the definitive agreements relating to the Financing without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed); provided that Parent and Merger Sub may, without the Company’s prior written consent, (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Debt Financing Agreements the definitive agreements relating to the Financing, if such termination, amendment, replacement replacement, supplement or other modification or waiver (iA) reduces does not reduce the aggregate cash amount of proceeds of the Financing, (B) does not change the timing of the funding of the Financing thereunder and would not reasonably be expected to prevent, delay or impede the consummation of all or a portion of the Financing or the Merger, (iiC) imposes does not adversely change or impose new or additional conditions or other terms otherwise expand or otherwise modifies adversely amend any of the conditions to Financing Conditions from those set forth in the receipt Commitment Letter on the date of the Financing or other terms in a manner that would reasonably be expected to this Agreement and (xD) delay or prevent the Closing or (y) does not otherwise make the timely funding of the Financing or the satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of the Commitment Letter.
Appears in 1 contract
Samples: Merger Agreement (Office Depot Inc)
Financing and Financing Cooperation. (a) Parent and Merger Sub shall use its their reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by the Commitment Letter on (or prior to in the Closing Date on event any portion or all of such Financing becomes unavailable or otherwise undesirable, alternative financing (in an amount sufficient, together with the terms and conditions described in remaining Financing contemplated by the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter if any, and any Definitive Debt Financing Agreements other sources available to Parent and comply with its obligations thereunder; Merger Sub, to fund the payment of the Merger Amounts) from the same or other sources) as and to the extent (iibut only to the extent) satisfy or if applicable use reasonable best efforts required to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) fund the Merger Amounts. Parent shall keep the Company informed on a timely reasonably current basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about of the status of its efforts to arrange the Financing contemplated by (or replacement thereof). Without limiting the Commitment Letter and any other financing and generality of the foregoing, Parent shall give the Company prompt notice (i) upon becoming aware of any fact, change, event material breach or circumstance that is reasonably likely default by any party to have, individually the Commitment Letter (or in the aggregate, a material adverse impact on any replacement thereof) or definitive agreements related to the Financing necessary and (ii) of the receipt of any notice or other communication from any Person party to pay any definitive document relating to the Merger Amount Financing (or any replacement thereof) or the Commitment Letter (or any replacement thereof) with respect to any material breach of Parent or any of its Affiliates of its obligations under any such document or letter or default, termination or repudiation by any party to any such document or letter. Unless the Financing contemplated by the Commitment LetterLetter (or any replacement thereof) becomes unavailable in whole or in part, Parent shall not, without the prior written consent of the Company agree to amend, modify, supplement, restate, substitute or replace the Commitment Letter (or any replacement thereof) if such amendment, modification, supplement, restatement, substitution or replacement (a) materially expands the conditions precedent to the funding on the Closing Date of the Financing as set forth in the Commitment Letter as in effect as of the date hereof (or in such replacement, as applicable) or (b) taking into account the expected timing of the Marketing Period, would reasonably be expected to delay or prevent the consummation of the transactions contemplated by this Agreement.
(b) Prior to the Closing, Parent The Company shall notand shall cause its Subsidiaries to, and shall not permit use its reasonable best efforts to cause its and their respective Representatives to provide all cooperation that is necessary, customary or advisable and requested by Parent to assist Parent and Merger Sub toin arranging, agree to or permit obtaining and syndicating any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such terminationincluding, amendmentwithout limitation, replacement or modification by (i) reduces making senior management and advisors of the aggregate amount Company and its Subsidiaries available to participate at reasonable times in a reasonable number of meetings, presentations, road shows and due diligence sessions that are requested a reasonable time period in advance with proposed lenders, underwriters, initial purchasers or placement agents, and in sessions with rating agencies, (ii) providing reasonable and timely assistance to Parent and the Financing Entities in their preparation of (1) materials for lender presentations, confidential information memoranda (public and non-public), offering memoranda, prospectuses and similar documents customary or required in connection with the Financing and (2) customary pro forma financial statements reflecting the Merger and the Financing (it being understood that nothing in this Section 5.13(b) shall require the Company to prepare any pro forma financial statements), (iii) as promptly as practicable on an ongoing basis, furnishing Parent and the Financing Entities with (I) the Required Financial Information; (II) the Closing Financial Information and (III) such other financial and other information relating to the Company and its Subsidiaries as is customary or reasonably necessary for the arrangement, syndication and completion of the Financing, (iv) if requested in writing by Parent at least eight (8) Business Days prior to the Closing Date, furnish to Parent and the Financing Parties all information regarding the Company and its Subsidiaries that is requested by Parent and required in connection with the Financing by regulatory authorities under applicable “beneficial ownership,” “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, at least five (5) Business Days prior to the Closing Date, (v) providing customary authorization letters authorizing the distribution of information to prospective lenders and containing a customary representation to the Financing Parties for the Financing that such information does not contain a material misstatement or omission and containing a representation to the Financing Parties that the public side versions of such documents, if any, do not include material non-public information about the Company and its Subsidiaries or its or their securities, (vi) executing and delivering definitive financing documents, including any pledge and security documents, any loan agreements, guarantees, currency or interest hedging agreements, certificates, and other definitive financing documents, and in each case assisting in the preparation of applicable schedules and other information necessary in connection therewith, and (vii) using reasonable best efforts to facilitate the pledging of collateral (including delivery of stock and other equity certificates of Company and its Subsidiaries at the Effective Time). To the extent practicable, the Company shall be given a reasonable opportunity to review and comment on any information regarding the Company contained in any materials, documents or memoranda to be presented at any meetings conducted in connection with the Financing at which the senior management or advisors of the Company and its Subsidiaries are requested by Parent or Merger Sub to be present.
(c) The provisions of Section 5.13(b) notwithstanding, nothing in the foregoing Section 5.13(b) will require the Company or any of its Subsidiaries or any of their respective Representatives to (i) agree to pay any fees or reimburse any expenses prior to the Effective Time for which it has not received prior reimbursement or is not otherwise indemnified by or on behalf of Parent, (ii) take any action or provide any assistance that would unreasonably interfere with the conduct of the business of the Company and its Subsidiaries, (iii) take any action or provide any information that will conflict with or violate its organizational documents or any applicable material Laws or (in the case of the disclosure of information) would result in the waiver of any legal privilege (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing or providing such information to the maximum extent permitted by Law or to the maximum extent that does not result in a loss of such legal privilege, as applicable, and in the event that the Company or any of its Subsidiaries does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld), (iv) give indemnities that are effective prior to the Effective Time for which it is not simultaneously indemnified by Parent, (v) pass resolutions or consents to approve or authorize the execution of the Financing or any definitive agreements with respect thereto prior to the Effective Time, provided that the Company and its Subsidiaries and Representatives shall cooperate with Parent to replace any officers and directors of the Company and its Subsidiaries who will not be employed thereby immediately after Closing with Persons designated by Parent and to add any officers and directors designated by Parent, such replacements and additions to become effective immediately at Closing, (vi) cause the execution of any certificates or other documents (other than customary authorization and representation letters) by any employee whose employment by the Company or any of its Subsidiaries will terminate prior to or upon Closing, or (vii) take any action pursuant to this Section 5.13 or any other provision of this Agreement that would reasonably be expected to result in personal liability to a director, officer or other personnel. In addition, no action, liability or obligation of the Company, any of its Subsidiaries or any of their respective Representatives pursuant to any certificate, agreement, arrangement, document or instrument (other than customary authorization and representation letters) relating to the Financing will be required to be effective until the Effective Time.
(d) Notwithstanding anything herein or in the Confidentiality Agreement to the contrary, all non-public or other confidential information provided by the Company or any of its Representatives to Parent pursuant to this Agreement will be kept confidential in accordance with the Confidentiality Agreement, except that Parent will be permitted to disclose such information to any Financing Parties or prospective Financing Parties (and, in each case, to their respective counsel and auditors) so long as such information is furnished by Parent subject to customary confidentiality undertakings in connection with the Financing.
(e) Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the Financing and the cooperation of the Company and its Subsidiaries and Representatives contemplated by Section 5.13(a), and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing, any cooperation pursuant to Section 5.13(a) and any information used in connection therewith, except with respect to (i) any information provided in writing by the Company or any of its Subsidiaries for use in connection with the Financing or (ii) imposes new any fraud, intentional misrepresentation, gross negligence or additional conditions willful misconduct by any such persons or material breach by any such persons of their obligations hereunder.
(f) The Company shall and shall cause each of its Subsidiaries to deliver all notices and take other actions required to facilitate the termination of commitments under the Company Credit Agreement, repayment in full of all obligations under the Company Credit Agreement and release of any Liens and guarantees in connection therewith on the Closing Date. The Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to furnish to Parent, no later than one (1) Business Day prior to the Closing Date, a customary payoff letter with respect to the Company Credit Agreement (the “Payoff Letter”) in substantially final form and in form and substance reasonably satisfactory to Parent from all financial institutions and other Persons to which Indebtedness under the Company Credit Agreement or “Credit Agreement Obligations” (as defined in the Company Credit Agreement) are owed, or the applicable agent, trustee or other terms representative on behalf of all such Persons, which Payoff Letter shall (x) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or otherwise modifies any other outstanding and unpaid obligations related to such Indebtedness and other obligations as of the conditions to Closing Date (the “Payoff Amount”) and (y) state that all obligations (including guarantees) in respect thereof and Liens in connection therewith on the assets of the Company or any Subsidiary of the Company shall be, substantially concurrently with the receipt of the Financing Payoff Amount on the Closing Date by the Persons holding such Indebtedness or other terms in a manner that would reasonably obligations, be expected released and terminated, or arrangements satisfactory to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occurParent for such release shall have been made by such time, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreementsubject, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies replacement (or cash collateralization or backstopping) of any such amendment, replacement then outstanding letters of credit or other modification of the Commitment Lettersimilar Indebtedness.
Appears in 1 contract
Samples: Merger Agreement (KMG Chemicals Inc)
Financing and Financing Cooperation. (a) Parent and Merger Sub shall use its reasonable their respective best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, proper to obtain the Financing contemplated by the Commitment Letter Letters on or prior to the Closing Date on the terms and subject to the conditions described in the Commitment LetterLetters (including, including using reasonable best efforts toin the case of the Debt Financing, the flex provisions of any applicable fee letters), including: (i) maintain maintaining in effect and enforcing the Commitment Letter Letters and any Definitive Debt Financing Agreements and comply complying with its obligations thereunderthereunder that are a condition to the availability of the Financing; (ii) satisfy or if applicable use reasonable using best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) satisfy on a timely basis (or obtain a waiver of ) all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter Letters and the Definitive Debt Financing Agreements; and (iii) using best efforts to negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including, if necessaryin the case of the Debt Financing, any “flex” provisionsprovisions in the applicable fee letters) (the “Definitive Debt Financing Agreements”) and definitive equity financing agreements on the terms and conditions contemplated by the Equity Commitment Letter (the “Definitive Equity Financing Agreements” and together with the Definitive Debt Financing Agreements, the “Definitive Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide keep the Company information informed on a regular basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated by the Commitment Letter Letters and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment LetterLetters.
(b) Prior Except as otherwise expressly provided in this Section 5.10, prior to the Closing, Parent and Merger Sub shall not, and Parent shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement replacement, supplement or other modification of, or waive any of its material rights under, the Commitment Letters or Definitive Financing Agreements without the Company’s prior written consent; provided that Parent and Merger Sub may, without the Company’s prior written consent, (i) enter into any amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter or Definitive Debt Financing Agreements if such terminationthat would not, amendmentand would not reasonably be expected to, replacement or modification (i) reduces reduce the aggregate amount of the Debt Financing contemplated by the Debt Commitment Letter, unless there is a corresponding increase in the amount of the Equity Financing pursuant to the Equity Commitment Letter, or prevent or materially delay the consummation of the Merger or the Debt Financing contemplated by the Debt Commitment Letter; or (ii) imposes new or additional conditions or other terms amend, replace, supplement or otherwise modifies any of modify the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Debt Commitment Letter to add lenders, lead arrangers, bookrunnersbook runners, syndication agents or similar entities who that had not executed the Debt Commitment Letter as of the date hereof so long as any such addition would not reasonably be expected to prevent, delay or to reassign titles to such parties who had executed impede the Commitment Letter as consummation of the date hereofMerger or the Debt Financing contemplated by the Debt Commitment Letter, but only, with respect to clauses (i) and (ii), to the extent doing so would not impose new or additional conditions or expand any existing condition to the receipt and availability of the Debt Financing. Upon any such amendment, replacement replacement, supplement or modification, the term terms “Debt Commitment Letter” ”, and “Definitive Debt Financing Agreement” ”, shall mean the Debt Commitment Letter or Letter, Definitive Debt Financing Agreement, as applicable, as so amended, replaced replaced, supplemented or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement replacement, supplement or other modification of the Debt Commitment Letter.
(c) If all or any portion of the Debt Financing becomes unavailable, or any of the Debt Commitment Letter or Definitive Debt Financing Agreements shall be withdrawn, repudiated, terminated or rescinded for any reason, then Parent shall use its best efforts to obtain, as promptly as practicable, from the same and/or alternative financing sources, alternative financing in an amount sufficient to consummate the transactions contemplated by this Agreement and pay the Merger Consideration and the other Merger Amounts. In the event any alternative financing is obtained in accordance with this Section 5.10(c) (“Alternative Financing”), references in this Agreement to the Financing shall also be deemed to refer to such Alternative Financing, and if one or more commitment letters or definitive financing agreements are entered into or proposed to be entered into in connection with such Alternative Financing, references in this Agreement to the Debt Commitment Letters and the Definitive Debt Financing Agreements shall also be deemed to refer to such commitment letters and definitive financing agreements relating to such Alternative Financing, and all obligations of Parent pursuant to this Section 5.10 shall be applicable thereto to the same extent as Parent’s obligations with respect to the Financing. Notwithstanding anything in this Agreement to the contrary, each of the Parties, on behalf of itself and each of its Affiliates, hereby agrees that nothing in this Agreement requires Parent, Merger Sub or any of their respective Affiliates, officers, directors, or employees to initiate a Proceeding to seek specific performance or any other relief against any of the Debt Financing Sources under the Debt Commitment Letter to cause the Debt Financing to become available.
(d) The Company shall, and shall cause its Subsidiaries and their respective Representatives to, provide such cooperation as is reasonably requested by Parent or the Debt Financing Sources in connection with the Debt Financing, including, but not limited to, using commercially reasonable efforts to (i) furnish Parent and Merger Sub and its Debt Financing Sources with (A) the Required Information and (B) such other financial and pertinent information regarding the Company and its Subsidiaries as may be reasonably requested in writing by Parent at least ten (10) Business Days prior to the Closing Date, including information that is required in connection with the Debt Financing as required by Governmental Entities under applicable “know your customer” and anti-money laundering rules and regulations, including the U.S.A. PATRIOT Act of 2001 and 31 C.F.R. § 1010.230 (the “Beneficial Ownership Regulation”), as set forth in the Debt Commitment Letter, as in effect on the date hereof, (ii) upon reasonable advance notice, cause the Company’s senior management to participate in a reasonable number of rating agency presentations, lender meetings and meetings with parties acting as arrangers, bookrunners, and/or other lenders and investors for the Debt Financing, during normal business hours, (iii) furnish existing information in its possession regarding the Company and its Subsidiaries reasonably necessary to assist Parent in preparing pro forma financial statements, it being understood that the Company need only assist in the preparation thereof, but shall not be required to independently prepare any separate pro forma financial statements or other information, (iv) assist in the preparation of appropriate and customary bank books, confidential information memoranda, lender and investor presentations, ratings agency presentations and similar documents required in connection with the Debt Financing (including, in each case, by participating in drafting sessions with respect thereto and provide such other information and documents customarily provided in connection with the Debt Financing) and execute customary authorization and management representation letters in connection therewith, and (v) assist in the preparation of and, in the case of the Company and its Subsidiaries, to execute and deliver, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Debt Financing and including providing information reasonably necessary for the completion of any schedules thereto. No obligations of the Company or any of its Subsidiaries or any of its or their respective officers, directors, employees and agents or other Representatives under any certificate, document or instrument delivered pursuant to this Section 5.10(d) shall be required to be effective until the Effective Time. In addition, notwithstanding anything in this Section 5.10 to the contrary, in fulfilling its obligations pursuant to this Section 5.10, (i) none of the Company, its Subsidiaries or its or their respective officers, directors, employees and agents or other Representatives shall be required to (A) pay any commitment or other fee, provide any security or incur any Liability or obligation in connection with the Debt Financing or any other financing prior to the Effective Time, (B) take or permit the taking of any action that would reasonably be expected to conflict with, result in any violation or breach of, or default (with or without lapse of time, or both) under, the Company Organizational Documents or the organizational documents of any Subsidiary of the Company, or any applicable Law or material contracts of the Company or any of its Subsidiaries, or (C) provide any cooperation that, in the reasonable opinion of the Company, would unreasonably interfere with the ongoing operations of the Company and its Subsidiaries, and (ii) Parent shall reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with fulfilling its obligations pursuant to this Section 5.10 (including reasonable attorneys’ fees) (provided, however, that Company and its Subsidiaries shall bear all costs and expenses incurred by them and their respective Affiliates with respect to the preparation, review, audit and delivery of Required Information by the Company’s independent accountants (but excluding comfort letters, reports and opinions)). Notwithstanding anything to the contrary contained herein, it is understood and agreed that the condition precedent set forth in Section 6.3(b), as applied to Company’s obligations under this Section 5.10(d), shall be deemed to be satisfied unless the Debt Financing has not been obtained as the sole result of the Company’s Willful Breach of its obligations under this Section 5.10(d). Parent shall indemnify and hold harmless the Company and its Subsidiaries (and their respective Representatives) from and against any and all losses, damages, claims, costs or expenses actually suffered or incurred by them in connection with the Financing or any other financing (including the arrangement thereof) and any information used in connection therewith (other than information provided to Parent in writing by the Company or its Subsidiaries for inclusion in any syndication materials relating to the Financing), except in the event such loss or damage arises out of or results from the Willful Breach by the Company or its Subsidiaries or any of their respective Representatives in fulfilling their obligations pursuant to this Section 5.10.
(e) Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of Parent’s or Merger Sub’s obligations hereunder.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent Each of Parent, Intermediate Holdco and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Debt Financing contemplated by the Commitment Letter on or prior to the at Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; Commitments (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by provided that Parent, seek a waiver of) on a timely basis all conditions to the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter Intermediate Holdco and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to may (x) delay or prevent amend the Closing or (y) make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter Debt Financing Commitments as of the date hereof of this Agreement, (y) amend the Debt Financing Commitments to implement any flex provisions applicable thereto or (z) otherwise replace or amend, or agree to reassign titles any waivers in respect of, the Debt Financing Commitments so long as, in each case, such action would not reasonably be expected to delay or prevent the Closing, impair the availability of the Debt Financing Commitments and the terms are not less beneficial to Parent, Intermediate Holdco or Merger Sub, with respect to conditionality or enforcement, than those in the Debt Financing Commitments as in effect on the date of this Agreement), including using reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable in connection therewith, (ii) maintain in effect the Debt Financing Commitments for as long as the transactions contemplated by this Agreement are required to be consummated, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub in the Debt Financing Commitments that are within their control (including by consummating the Financing pursuant to the terms of the Equity Financing Commitment) and otherwise comply in all material respects with its obligations thereunder, (iv) negotiate definitive agreements with respect thereto on the terms and conditions (including, to the extent the same are exercised, the flex provisions) contemplated by the Debt Financing Commitments or on other terms acceptable to Parent that would not (x) reduce the aggregate amount of the Debt Financing unless the Equity Financing is increased by a corresponding amount or (y) impose new or additional conditions precedent to the receipt of the Debt Financing, in the case of this clause (y) in a manner that would reasonably be expected to delay or prevent the Closing Date, (v) if all of the conditions to Parent’s, Intermediate Holdco’s and Merger Sub’s obligations under Section 7.1 and Section 7.2 (other than those conditions that, by their terms, will be satisfied on the Closing Date) have been satisfied or waived and the Marketing Period has ended, consummate the Debt Financing at Closing, (vi) enforce their rights under the Debt Financing Commitments, and (vii) cause as promptly as reasonably practicable the Debt Financing Sources to provide to Xxxxxxx Companies’ independent accountants, with respect to the preparation of the comfort letters contemplated by the definition of Required Financial Information, a “circle-up” of a customary draft offering memorandum, which Parent shall use reasonable best efforts to prepare as promptly as reasonably practicable, upon which such comfort letters can be delivered. Without limiting the generality of the foregoing, Parent, Intermediate Holdco and Merger Sub shall give the Company prompt notice: (A) of any material breach or default by any party to any Financing Commitment; (B) of the receipt of any written notice or other written communication from any person with respect to any: (x) breach, default, termination or repudiation by any party to any Financing Commitment or (y) material dispute between or among any parties who had executed to any Financing Commitment; (C) if for any reason Parent, Intermediate Holdco or Merger Sub believes in good faith that (I) there is a material dispute between or among any parties to any Financing Commitment or any definitive document related to the Commitment Letter Financing or (II) there is a material possibility that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitment; and (D) if for any reason any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments. As soon as reasonably practicable, but in any event within three (3) Business Days, after the date the Company delivers to Parent, Intermediate Holdco or Merger Sub a written request, Parent, Intermediate Holdco and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B), (C) or (D) of the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitments, Parent shall use its reasonable best efforts to 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; it being understood that Parent shall have no obligation to accept terms that are materially less favorable, taken as a whole (after taking into account any flex provisions), to Parent than those included in the Debt Financing Commitments as of the date hereof. Upon Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing (subject to any applicable restrictions in the Debt Financing Commitments). For purposes of this Agreement, the definitions of “Debt Financing Commitments,” “Debt Financing” and related definitions shall include the Debt Financing Commitments and any document related thereto as the same may be amended, waived, modified or replaced pursuant to this Section 6.6(a).
(b) Prior to the Closing, the Acquired Companies shall, and shall use reasonable best efforts to cause their respective representatives to, at Parent’s sole expense, provide to Parent and Merger Sub such cooperation reasonably requested by Parent that is necessary, proper or advisable in connection with the Debt Financing (provided that such requested cooperation is consistent with applicable Law), including (i) causing the Acquired Companies’ management team, with appropriate seniority and expertise, to participate in, including the preparation for, a reasonable number of meetings, conference calls, drafting sessions, presentations, road shows, due diligence sessions and similar sessions with prospective Debt Financing Sources, investors and rating agencies, in each case, upon reasonable advance notice by Parent; (ii) (A) assisting with the preparation of reasonable and customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda and similar documents required and/or reasonably requested by the Debt Financing Sources in connection with the Debt Financing and (B) executing and delivering customary authorization letters and management representation letters; (iii) as promptly as reasonably practical, furnishing Parent and its Debt Financing Sources with the Required Financial Information and other financial and other information regarding the Acquired Companies as may be reasonably requested by Parent, (iv) using reasonable best efforts (A) to assist in the preparation, negotiation, execution and delivery of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, legal opinions and officer’s certificates), (B) to facilitate the pledging of collateral and (C) to cause accountants to consent to the use of their reports in any material relating to the Debt Financing and to deliver customary comfort letters to the Debt Financing Sources, (v) obtaining customary debt pay-off letters and releases, (vi) executing a solvency certificate of the chief financial officer of the Company or another Acquired Company in the form required by the Debt Financing Commitments, (vii) furnishing Parent and its Debt Financing Sources promptly with all documentation and other information reasonably required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, that has been reasonably requested by Parent, (viii) causing the taking of corporate and other actions by the Acquired Companies reasonably necessary to permit the consummation of the Debt Financing on the Closing Date and to permit the proceeds thereof to be made available to Parent as of the Closing Date and (ix) cooperating in satisfying the conditions precedent set forth in the Debt Financing Commitments; it being understood and agreed that (A) no such corporate or other action will take effect prior to the Closing Date and (B) any such amendmentcorporate or other action will only be required of the directors, replacement members, partners, managers or modificationofficers of the Acquired Companies and/or their Subsidiaries who retain their respective positions as of the Effective Time, of which for the term “Commitment Letter” and “Definitive avoidance of doubt, shall not include any employees or agents of the Oak Hill Entities. The Acquired Companies shall not be required, under the provisions of this Section 6.6 or otherwise in connection with the Debt Financing Agreement” shall mean (x) to pay any commitment or other similar fee prior to the Commitment Letter Effective Time, (y) to incur any expense unless such expense is reimbursed by Parent on the earlier of the Effective Time or Definitive termination of this Agreement in accordance with Article IX (Termination) or (z) to incur any liability under any loan or security document with respect to the Debt Financing Agreementprior to the Effective Time or that is not contingent on the Closing. Notwithstanding the foregoing, as applicable(a) no obligation of the Acquired Companies under any certificate, as so amendeddocument or instrument shall be effective until the Effective Time and none of the Acquired Companies shall be required to take any action under any certificate, replaced document or modifiedinstrument that is not contingent upon the Closing (other than with respect to any authorization letter described in clause (b)(ii)(B) above), (b) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Acquired Companies, and (c) none of the Acquired Companies shall be required to issue any offering document prior to the Effective Time. None of the Acquired Companies shall be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment in connection with the Financing or any of the foregoing prior to the Effective Time. Parent shall promptly deliver indemnify and hold harmless the Acquired Companies and their Affiliates and their respective officers, directors, employees, investment bankers, attorneys, accountants, consultants and other authorized agents, advisors or representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with this Section 6.6(b) (other than to the extent such losses arise from the gross negligence, bad faith, Willful Breach of or material breach of this Agreement by the Acquired Companies) (collectively, the “Financing Cooperation Indemnity”). Whether or not the Effective Time occurs, Parent shall reimburse the Company copies for all reasonable and documented out-of-pocket costs incurred by the Acquired Companies in connection with this Section 6.6(b) on the earlier of the Effective Time or termination of this Agreement in accordance with Article IX (Termination) (collectively, the “Financing Cooperation Expenses”, and together with the Financing Cooperation Indemnity, the “Financing Cooperation Obligations”). The Company shall, and shall cause each of the other Acquired Companies (including Xxxxxxx Companies) to, use reasonable best efforts to (i) periodically update any Required Financial Information provided by them or on their behalf as may be necessary so that such Required Financial Information is (x) Compliant, (y) meets the applicable requirements set forth in the definition “Required Financial Information” and (z) would not, after giving effect to such update(s), result in the Marketing Period to cease to be deemed to have commenced, and (ii) notify Parent in writing if (1) the Company determines that it must restate any financial statements included in the Required Financial Information or (2) the applicable independent accountants of the Acquired Companies shall have withdrawn any audit opinion with respect to any financial statements contained in the Required Financial Information for which they have provided an opinion. In addition, if, in connection with a marketing effort contemplated by the Debt Financing Commitments, Parent reasonably requests the Company to cause Xxxxxxx Companies to file a Current Report on Form 8-K pursuant to the Exchange Act that contains material non-public information with respect to any of the Acquired Companies, which Parent reasonably determines to include in a customary offering memorandum for the Debt Financing, then, upon the Company’s review of and reasonable satisfaction with such filing, the Company shall cause Xxxxxxx Companies to file such Current Report on Form 8-K. The Acquired Companies consent to the reasonable use of the Acquired Companies’ logos in connection with any Debt Financing in a manner customary for such financing transactions; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage any Acquired Company or the reputation or goodwill of any such amendmentAcquired Company.
(c) Parent, replacement Intermediate Holdco and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to the Closing and reaffirm their obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to fulfillment or waiver of the conditions set forth in Article VII (Conditions Precedent to the Closing). Nothing contained in this Section 6.6 or otherwise shall require the Acquired Companies to be an issuer or other modification of obligor with respect to the Commitment LetterDebt Financing prior to the Closing.
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent and the Merger Subs shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Financing, including by using their reasonable best efforts to: (A) maintain in effect the Commitment Letter, (B) negotiate and enter into definitive agreements with respect to the Financing, (C) enforce their rights and the obligations of the Financing Entities under the Commitment Letter, (D) satisfy (or properhave waived, if deemed advisable by Parent) all of the conditions set forth in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to Commitment Letter that are within their control and (E) obtain the Financing contemplated by the Commitment Letter on or prior as and to the Closing Date on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to: extent (i) maintain in effect the Commitment Letter and any Definitive Debt Financing Agreements and comply with its obligations thereunder; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions but only to the funding of extent) required to fund the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”)Merger Amount. Upon the reasonable request of by the Company, Parent shall provide keep the Company information reasonably informed on a reasonably current basis and in reasonable detail about of the status of its efforts to arrange the Financing contemplated (or replacement thereof), and shall provide the Company information and copies of drafts of such definitive documentation as is available to them as may be reasonably requested by the Commitment Letter and any other financing and Company for purposes of monitoring the progress of the Financing. Parent shall give the Company prompt notice (i) upon becoming aware of any fact, change, event or circumstance that is reasonably likely material change with respect to have, individually or in the aggregate, a material adverse impact on availability of the Financing necessary (including actual breach or default by any party to pay the Merger Amount contemplated Commitment Letter (or any replacement thereof)), (ii) of the receipt of any written notice or other written communication from any Person party to the Commitment Letter (or any replacement thereof) with respect to, or Parent becoming aware of, any material dispute or disagreement between or among any parties to the Commitment Letter (or any replacement thereof) relating to the obligation to fund the Financing or any breach of Parent or any of its Affiliates of its obligations under such letter or default, termination or repudiation by any party to such letter, and (iii) of any termination of the Commitment Letter.
(b) Prior to the Closing, . Parent shall not, and shall not permit Merger Sub towithout the prior written consent of the Company, agree to take any action or permit any terminationto amend, amendmentmodify, replacement supplement, restate, substitute or other modification of replace the Commitment Letter (or Definitive Debt Financing Agreements any replacement thereof) if such termination, action or such amendment, modification, supplement, restatement, substitution or replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) materially delay or prevent the Closing or consummation of the transactions contemplated by this Agreement, (y) make reduce the timely funding aggregate amount of the Financing or satisfaction to be funded on the Closing Date such that the aggregate amount of the conditions Financing would be less than the amount required to obtaining pay the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent Merger Amount or (Bz) otherwise adversely affect the ability of Parent or any of its Affiliates to enforce their rights under the Commitment Letter or to consummate the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth herein, Parent and the Merger Subs may modify, supplement, or amend the Commitment Letter, to add lenders, lead arrangers, bookrunners, syndication agents agents, documentation agents, lenders or similar entities who had that have not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon Notwithstanding the foregoing, if the Financing contemplated by the Commitment Letter (or any replacement thereof) becomes unavailable, Parent shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources (it being understood that Parent and Merger Subs shall have no obligation to accept terms or conditions that are less favorable in the aggregate to Parent and Merger Subs than the terms and conditions set forth in the Commitment Letter as in effect on the date hereof and Parent and Merger Subs shall not be required to pay fees more than the amount of fees required to be paid under the Commitment Letter as in effect on the date hereof (taking into account “market flex” provisions)), without any expansion of the conditions precedent to the Financing set forth in the Commitment Letter that would make such amendmentconditions less likely to be satisfied by the Closing Date, replacement and in an amount at least equal to the Financing or modificationsuch unavailable portion thereof, as the case may be (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to such Alternate Financing (together with any related fee letter, the term “New Commitment Letter”) and a complete and correct copy of which shall be provided by Parent to the Company promptly (with respect to any fee letter, subject to customary redactions solely with respect to fee amounts, original issue discount, “market flex” provisions and other customarily redacted economic terms). In the event any New Commitment Letter is obtained with respect to Financing, (I) any reference in this Agreement to the “Financing” shall mean the debt financing contemplated by the Commitment Letter as modified pursuant to clause (II) below, and (II) any reference in this Agreement to the “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean be deemed to include the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies of any such amendment, replacement or other modification of extent not superseded by the New Commitment LetterLetter at the time in question and the New Commitment Letter to the extent then in effect.
Appears in 1 contract
Samples: Merger Agreement (Skillsoft Corp.)
Financing and Financing Cooperation. (a) Parent Purchaser shall use its 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 or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to arrange and obtain the Financing contemplated by the Commitment Letter on or prior to the Closing Date on the terms and conditions described in the Commitment Letter (including any “securities demand” provisions contemplated by the fee letter associated with the Commitment Letter), including using reasonable best efforts to: , as promptly as possible, (i) maintain satisfy, or cause to be satisfied, on a timely basis (taking into account the expected timing of the Marketing Period) all conditions applicable to the Purchaser to funding in effect the Commitment Letter that are within its control; (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including any Definitive “securities demand” provisions contemplated by the fee letter associated with the Commitment Letter) contemplated by the Commitment Letter (the “Debt Financing Agreements and Documents”); (iii) comply with its obligations thereunderunder the Commitment Letter; (iiiv) satisfy if the conditions to the Financing have been satisfied, consummate the Financing at or prior to Closing; and (v) enforce its rights under the Commitment Letter (including through litigation pursued in good faith) to the extent that the failure to enforce would adversely impact the amount or timing of the Financing (taking into accounting the expected timing of the Marketing Period) or the availability of the Financing at Closing. Purchaser shall give the Sellers’ Representative prompt written notice (A) of any breach or default by any party to the Commitment Letter or other Debt Document, if applicable, of which Purchaser becomes aware (B) if and when Purchaser becomes aware that it will not be able to obtain all or any portion of the Financing contemplated by the Commitment Letter, (C) of the receipt of any written notice or other written communication, in each case, from a Financing Arranger, alleging (1) any actual or potential breach, default, termination or repudiation by any party to the Commitment Letter or other Debt Document, if applicable, or (2) material dispute or disagreement between or among any parties to the Commitment Letter or other Debt Document, if applicable use reasonable best efforts (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to cause the terms of the Financing or Debt Documents), with respect to the obligation to fund the Financing or the amount of the Financing to be satisfied (orfunded at Closing, if deemed advisable by Parentin each case, seek a waiver of) on a timely basis all conditions to that would make the funding of the Financing (including the Financing Conditions) set forth in the Commitment Letter and the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing contemplated by the Commitment Letter and any other financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on the Financing necessary to pay the Merger Amount contemplated by the Commitment Letter.
(b) Prior to the Closing, Parent shall not, and shall not permit Merger Sub to, agree to or permit any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification (i) reduces the aggregate amount of the Financing or (ii) imposes new or additional conditions or other terms or otherwise modifies any of the conditions to the receipt of the Financing or other terms in a manner that would reasonably be expected to (x) delay or prevent the Closing or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially Financing) less likely to occuroccur or delay the availability of the Financing. Without limiting the foregoing, Purchaser shall keep the Sellers’ Representative informed on a reasonably current basis in reasonable detail of the material developments concerning the status of their efforts to arrange the Financing and provide to the Sellers’ Representative, upon its reasonable request, copies of executed copies of the material definitive documents related to the Financing, if any, and such other thaninformation and documentation available to them as shall be reasonably requested by the Sellers’ Representative for purposes of monitoring the progress of the financing activities. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter (after taking into account “securities demand” provisions contemplated by the fee letter associated with the Commitment Letter), Purchaser shall use all reasonable best efforts to arrange to obtain in replacement thereof alternative financing, including from alternative sources, in each casean amount sufficient, when added to the portion of the Financing that is available and any cash of the Company and its Subsidiaries on hand at the Closing Date, to pay the Financing purposes (A“Alternative Financing”) a as promptly as practicable following the occurrence of such event and the provisions of this Section 5.9 shall be applicable to the Alternative Financing, and, for the purposes of this Agreement, all references to the Financing shall be deemed to include such Alternative Financing and all references to the Commitment Letter or other Debt Documents shall include the applicable documents for the Alternative Financing. Notwithstanding anything to the contrary contained herein, Purchaser shall not be required to consummate the Financing until the final day of the Marketing Period. Purchaser shall not permit, without the prior written consent of the Sellers’ Representative, any material amendment or modification to be made to, or any termination, rescission or withdrawal of, or any material waiver of any closing conditions provision or remedy under, the Commitment Letter that would (w) adversely impact the ability to enforce any rights under the Commitment Letter, (x) reduce the aggregate amount of the Financing under the Commitment Letter (including by lender(schanging the amount of fees to be paid or original issue discount thereof (except as set forth in any “securities demand” provisions contemplated by the fee letter associated with the Commitment Letter)), (y) impose any new or their agent additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Financing or (Bz) prevent or materially impair or delay the consummation of the Financing or of the transaction contemplated by this Agreement, or terminate the Commitment Letter (it being understood and agreed that, in any event, Purchaser may amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents agents, managers or similar entities who had that have not executed the Commitment Letter as of the date hereof of this Agreement). Notwithstanding anything to the contrary in this Agreement, compliance by Purchaser with this Section 5.9(a) shall not relieve Purchaser of its obligation to consummate the transactions contemplated by this Agreement, whether or not the Financing or Alternative Financing is available.
(b) From and after the date hereof, and through the earlier of the Closing and the date on which this Agreement is terminated in accordance with Article IX, Sellers shall, and Sellers shall cause each of the Company and the Company’s Subsidiaries, and shall use their respective commercially reasonable efforts to reassign titles cause each of their respective senior management, advisors and other representatives to, provide cooperation reasonably requested by Purchaser to assist Purchaser in the arrangement, syndication and obtaining of any debt or equity financing (“Financing”) for the purposes of financing the Purchase Price and any other amounts required to be paid by Purchaser in connection with the consummation of the transactions contemplated by this Agreement (it being acknowledged and agreed by Purchaser that, notwithstanding anything in this Agreement to the contrary, the receipt of any such parties who had executed Financing is not a condition to the consummation of the Closing or any of the other transactions contemplated by this Agreement), including using their reasonable best efforts to (i) participate in a reasonable number of meetings, drafting sessions, due diligence sessions, presentations, road shows and sessions with rating agencies, Financing Arrangers and prospective Financing Arrangers; (ii) participate in reasonable and customary due diligence; (iii) furnish Purchaser (which Purchaser may in turn furnish to the financial institutions providing or arranging the Financing, including any underwriters, initial purchasers or placement agents participating in the Financing (collectively, the “Financing Arrangers”)) as promptly as reasonably practicable with all Required Information and such other customary historical financial and other pertinent information regarding the Company and its Subsidiaries, in each case as may be reasonably requested by Purchaser to assist in the preparation of the Offering Documents (including to enable the Purchaser to prepare an abbreviated “Business” section, an abbreviated “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section and a description of risk factors relating to the business of the Company and its Subsidiaries) and all supplements thereto and the preparation of the pro forma financial statements referred to in paragraphs 5 and 10 of Exhibit D to the Commitment Letter as and to structure, arrange, syndicate and consummate the Financing, provided that nothing in this Agreement shall require the Company to prepare pro forma financial information or , which shall be the responsibility of the date hereof. Upon Purchaser, and, for the avoidance of doubt, the Purchaser shall be responsible for any pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments desired to be incorporated into any Offering Documents, provided, further, that the foregoing proviso shall not absolve the Company and its Subsidiaries from its obligations under this Section 5.9(b) to use reasonable best efforts to assist the Purchaser in the Purchaser’s preparation or computation of any such amendmentinformation or projections; (iv) assist in the preparation of customary materials for rating agency presentations, replacement or modificationroad show materials and similar documents required in connection with the Financing and other customary materials to be used in connection with arranging, syndicating and obtaining the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean Financing; (v) facilitate the Commitment Letter or Definitive Debt Financing Agreementpledging of collateral as may be reasonably requested by Purchaser (including the delivery of original share certificates, as applicabletogether with share powers executed in blank, as so amended, replaced or modified. Parent shall promptly deliver with respect to the Company copies and its Subsidiaries); (vi) use commercially reasonable efforts to cause their independent accountants to provide customary assistance and cooperation in the Financing as reasonably requested by Purchaser, including (A) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (B) providing any such amendment, replacement or other modification necessary customary consents to use their audit reports relating to the Business and (C) providing any necessary customary “comfort” (including “negative assurance comfort”) letters; (vii) cooperate with Purchaser to the extent within the control of the Commitment Letter.Company and its Subsidiaries, and take all organizational actions, subject to the occurrence of the Closing, reasonably requested by Purchaser to permit the consummation of the Financing;
Appears in 1 contract
Financing and Financing Cooperation. (a) Parent shall, and shall cause the Borrowers and certain of their Subsidiaries who shall be guarantors under the Financing, in each case to, use its reasonable best efforts to take, take (or cause to be taken) all actions, all actions and do, to do (or cause to be done, ) all things necessary, proper or advisable or proper, in each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price, to obtain the Financing contemplated by on the terms and subject to the conditions set forth in the Commitment Letter on or prior as promptly as possible such that as of the Closing, Parent shall consummate the Financing, including by using reasonable best efforts to (i) negotiate and enter into definitive agreements with respect to the Closing Date Financing (the “Financing Documents”) on the terms and conditions described contained in the Commitment LetterLetter or on other terms (subject to the limitations contained in this Section 8.3(a)) that would not reasonably be expected to prevent or delay the Integrated Mergers, including using reasonable best efforts to: (i) maintain in effect the Commitment Letter and any Definitive Debt other Transactions or the date on which the Financing Agreements and comply with its obligations thereundercould be obtained or make the timely funding of the full amount of the Financing less likely to occur; (ii) satisfy or if applicable use reasonable best efforts to cause to be satisfied (or, if deemed advisable by Parentboth Parent and the Company, seek a waiver of) on a timely basis all conditions in any Financing Documents and otherwise comply with all of its obligations thereunder; (iii) maintain in effect the Commitment Letter and any Financing Documents until the Financing is consummated or this Agreement is terminated in accordance with its terms; (iv) subject to clause (ii), assuming that all conditions contained in the Commitment Letter have been satisfied, consummate the Financing on a timely basis and satisfy all obligations of each of Parent or Merger Sub pursuant to this Agreement; and (v) enforce the Borrower’s rights under the Commitment Letter and/or any Financing Documents (as applicable) in the event of a breach by any counterparty thereto that could reasonably be expected to prevent or delay the consummation of the Transactions. Parent and the Merger Subs shall comply with their obligations, and enforce their rights, under the Commitment Letter and Financing Documents in a timely and diligent matter. Parent shall give the Company prompt oral and written notice of any breach or default by any party to any Financing Documents or any Alternative Financing (as defined below), in each case of which it has become aware, and any purported termination or repudiation by any party to any Financing Documents or any Alternative Financing, in each case of which it has become aware, or upon receipt of written notice of any dispute or disagreement between or among the parties to any Financing Documents or any Alternative Financing or any Financing Source. Neither Parent, nor any Subsidiary of Parent, shall amend, waive or modify any material provision of the Commitment Letter, except as contemplated by Section 2 thereof (or the terms and conditions of the Financing referred to therein) without the consent of the Company. Furthermore, notwithstanding the foregoing, in no event shall Parent (or any Subsidiary of Parent) amend, supplement, terminate, waive or otherwise modify the Commitment Letter, except as contemplated by Section 2 thereof (or the terms and conditions of the Financing referred to therein), in any manner, if such amendment, supplement, termination, waiver or other modification shall (A) reduce (or would reasonably be expected to have the effect of reducing) the aggregate amount of available financing, (B) impose new or additional conditions precedent or expand upon the conditions precedent to the Financing or adversely amends or modifies any of the conditions of the Financing, (C) materially delay, prevent or impede the timely funding of the Financing (including or the satisfaction of the conditions to the Financing) or the consummation of the Integrated Mergers or the other Transactions, (D) adversely impact the ability of any of Parent or the Merger Subs to enforce its rights against the other parties to the Commitment Letter or the Financing ConditionsDocuments and/or (E) set forth shorten the length of the commitment period provided in the Commitment Letter and Letter, in each case, without the Definitive Debt Financing Agreements; and (iii) negotiate and enter into definitive debt financing agreements on the terms and subject to the conditions contemplated by the Commitment Letter (including, if necessary, any “flex” provisions) (the “Definitive Debt Financing Agreements”). Upon the reasonable request written consent of the Company. In each case, promptly upon the Company’s request to Parent, Parent shall (1) provide to the Company information in reasonable detail about copies, as and when available, of all substantially final drafts and executed definitive agreements for the Financing Documents (excluding any provisions related solely to fees and other economic terms), and (2) keep the Company reasonably informed of the status of its efforts to arrange arrange, negotiate and close the Financing.
(b) In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in any Financing Documents (or such other terms reasonably satisfactory to each of Parent and the Company), each of Parent and the Company shall use reasonable best efforts to promptly arrange to obtain alternative financing (“Alternative Financing”) from alternative sources in an equivalent amount (on terms and conditions taken as a whole no less favorable to Parent and the Company (and their respective Subsidiaries) than the terms and conditions under the Commitment Letter (as in effect on the date hereof)). In such event (except as otherwise set forth herein, and except for purposes of Section 5.18), the term “Financing” as used in this Agreement shall be deemed to include any Alternative Financing and the term “Commitment Letter” as used in this Agreement shall be deemed to include any amendment to the Commitment Letter entered into in accordance with the terms hereof and any commitment letters entered into with respect to any Alternative Financing.
(c) From and after the date of this Agreement until the Closing, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to provide Parent with all cooperation reasonably requested by Parent in connection with the arrangement, syndication and consummation of the Financing. Such cooperation by the Company shall include using its commercially reasonable efforts to (i) provide assistance to Parent and the Merger Subs in connection with the preparation of the pro forma financial statements required pursuant to paragraph 8 of Exhibit E of the Commitment Letter as in effect as of the date hereof, provided that Parent, and not the Company or any of the Company Subsidiaries, shall be responsible for the preparation of any pro forma financial statements and pro forma adjustments giving effect to the Transactions, (ii) upon reasonable notice, at agreed times and places, participate in and to cause the Company’s senior management to participate in a reasonable number of due diligence sessions and other meetings with the parties acting as lead arrangers or agents for and prospective lenders for the Financing; (iii) provide reasonable assistance, with respect to information regarding the Company and the Company Subsidiaries, in the preparation of a customary information memorandum for a syndicated loan or bridge financing and customary offering memorandum for a Rule 144A offering of high yield debt securities that relate to the Company and the Company Subsidiaries and the business of the Company and the Company Subsidiaries (which assistance described in this clause (iii) shall not include the provision of financial information regarding the Company and the Company Subsidiaries not otherwise referenced in Section 8.3(g)); (iv) to the extent required by the Financing Sources, in the case of an offering of high yield debt securities as part of the Financing, request the independent auditors of the Company to cooperate with Parent to obtain a customary comfort letter to the extent requested in writing at least ten (10) Business Days prior to issuance of such customary comfort letter; (v) execute and deliver, as of the Closing Date (but in no event prior thereto), any definitive financing documents, including any credit agreements or any amendments or joinders thereto, customary ancillary documents and facilitate the pledge of collateral effective no earlier than the Closing Date; (vi) at Parent’s reasonable request, (A) assist with the preparation of a customary borrowing base certificate (solely to the extent relating to assets of the Company and the Company Subsidiaries), including relating to the borrowing base contemplated by the Commitment Letter Letter, delivering applicable supporting information and any other financing documentation and shall give assisting, and providing cooperation with and access to representatives of the Parent and Financing Sources to conduct customary field examinations and appraisals relating to inventory and real estate assets of the Company prompt notice of any factand the Company Subsidiaries, changeand (B) cooperate with Parent to establish bank and other accounts and blocked account agreements and lock box arrangements, event or circumstance to be effective no earlier than the Closing Date, in connection with the foregoing; and (vii) provide to Parent at least three (3) Business Days prior to the Closing Date all documentation and other information with respect to the Company and their Subsidiaries as shall have been reasonably requested in writing by Parent at least ten (10) Business Days prior to the Closing Date that is reasonably likely to have, individually or required in the aggregate, a material adverse impact on connection with the Financing necessary to pay by U.S. and Canadian regulatory authorities under applicable “know-your-customer” and anti-money laundering rules and regulations, including the Merger Amount contemplated Patriot Act, and the requirements of 31 CFR § 1010.230 and that are required by paragraph 5 of Exhibit E of the Commitment Letter.
(bd) Prior to Notwithstanding the Closingforegoing, Parent neither the Company nor any Company Subsidiary shall not, and shall not permit Merger Sub to, agree to be required (or permit the taking of any termination, amendment, replacement or other modification of the Commitment Letter or Definitive Debt Financing Agreements if such termination, amendment, replacement or modification action pursuant to this Section 8.3) to (i) reduces the aggregate amount take any action in respect of the Financing to the extent that such action would cause any condition to Closing set forth herein to fail to be satisfied by the required time or otherwise result in a breach of this Agreement by the Company; (ii) imposes new or additional conditions or other terms or otherwise modifies take any of the conditions to the receipt action in respect of the Financing that would violate the Company’s or other terms any of its Subsidiaries’ organizational documents or any Applicable Law, in each case in a manner that would have a Company Material Adverse Effect, or result in a non de minimis breach of, or non de minimis default under, any Company Material Contract to which the Company or any Company Subsidiary is a party to the extent such Company Material Contract is with a Third Party that is unaffiliated with the Company; (iii) execute and deliver any letter, agreement, document or certificate in connection with the Financing or take any corporate action that is not contingent on, or that would be effective prior to, the occurrence of the Closing; (iv) pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to, or cause or permit any Lien to be placed on, any of their respective assets in connection with the Financing prior to the Closing Date; (v) subject any of the Company’s or its Subsidiaries’ respective directors, managers, officers or employees to any actual or potential personal liability; (vi) cause or require the directors and managers of the Company or any Company Subsidiary to adopt resolutions approving the agreements, documents and instruments pursuant to which the Financing is obtained unless such resolutions are contingent upon the occurrence of, or only effective as of, the Closing or some other date following the Closing upon which such directors and managers are or will still be directors and managers of such Company or such Subsidiary; (vii) waive or amend any terms of this Agreement or any other Contract to which the Company or any Company Subsidiary is party; (viii) provide access to or disclose information where the Company determines in good faith that such access or disclosure would reasonably be expected to jeopardize the attorney-client privilege or contravene any applicable law or contract; or (ix) unreasonably interfere with the business of the Company and its Subsidiaries. Nothing in this Section 8.3 or otherwise shall require the Company or any Company Subsidiary, prior to the Closing Date, to be an issuer or other obligor with respect to any of the Financing.
(e) The Company hereby consents to the reasonable use of the logos of the Company and/or each of its Subsidiaries by Parent, the Merger Subs and the Borrowers, to the extent applicable, in connection with the Financing; provided, that Parent, the Merger Subs and the Borrowers shall ensure that such logos are used solely in a manner that is not intended or reasonably likely to harm or disparage the Company or any Company Subsidiary.
(f) Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or the Company Subsidiaries or their respective Representatives in connection with such cooperation pursuant to this Section 8.3 and shall indemnify and hold harmless the Company and the Company Subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with the arrangement of the Financing, any action taken by them at the request of Parent or the Merger Subs pursuant to this Section 8.3, and any information used in connection therewith (other than information provided in writing by the Company or the Company Subsidiaries specifically in connection with its obligations pursuant to this Section 8.3).
(g) The Company shall deliver to the Lead Arrangers under the Commitment Letter: (i) audited consolidated balance sheets of the Company and its consolidated subsidiaries as at the end of, and related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows for, the three most recently completed fiscal years ended at least 60 days before the Closing Date; and (ii) unaudited consolidated balance sheets of the Company and its consolidated subsidiaries as at the end of, and the related consolidated statements of income, comprehensive income, shareholders’ equity and cash flows for, each subsequent fiscal quarter (other than the fourth fiscal quarter of any fiscal year) of the Company and its consolidated subsidiaries ended after the most recent fiscal period for which audited financial statements have been provided pursuant to clause (i) hereof and ended at least 40 days before the Closing Date, including, for the avoidance of doubt, comparative information for the same period in the prior fiscal year. It is understood and agreed that (x) delay or prevent all such financial statements shall comply with the Closing or requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the SEC promulgated thereunder and have been prepared in conformity with GAAP applied on a consistent basis throughout the periods covered thereby, except in the case of unaudited financial statements, which are subject to normal period and adjustments and do not contain footnotes as permitted by the applicable rules of the SEC; (y) make all such unaudited financial statements shall have undergone a “SAS 100” review; and (z) the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing materially less likely to occur, other than, in each case, (A) a waiver of any closing conditions by lender(s) or their agent or (B) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Commitment Letter as of the date hereof or to reassign titles to such parties who had executed the Commitment Letter as of the date hereof. Upon any such amendment, replacement or modification, the term “Commitment Letter” and “Definitive Debt Financing Agreement” shall mean the Commitment Letter or Definitive Debt Financing Agreement, as applicable, as so amended, replaced or modified. Parent shall promptly deliver to the Company copies public filing of any such amendment, replacement or other modification required financial statements with the SEC shall constitute delivery of such financial statements to the Lead Arrangers under the Commitment Letter.
(h) For the avoidance of doubt, the Parties acknowledge and agree that the provisions contained in this Section 8.3 represent the sole obligation of the Company, the Company Subsidiaries and their respective Representatives with respect to cooperation in connection with the arrangement of any financing (including the Financing) to be obtained by Parent or any Merger Sub with respect to the Transactions and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
(i) All non-public or otherwise confidential information regarding the Company or its Subsidiaries obtained by Parent, any Merger Sub, or any of their respective Representatives pursuant to this Section 8.3 shall be kept confidential in accordance with the Confidentiality Agreement and the Clean Team Agreement.
Appears in 1 contract
Samples: Merger Agreement (McGrath Rentcorp)
