Financing Obligation. HTI Acquisition will use its best efforts to do or cause to be done all things necessary to consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms of the Commitment Letter. HTI Acquisition shall not, and shall use commercially reasonable efforts to cause the Equity Investors not to, amend or modify the terms of (i) the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment Letters, or any portion thereof, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior to the Effective Time, HTI Acquisition will not amend or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is a condition to the lenders' obligations thereunder, without the prior written consent of the lenders party to the Commitment Letters and any other Person whose consent is required pursuant to the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant to the Commitment Letters. For the avoidance of doubt, nothing contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition obtaining the Acquisition Financing or any Substitute Financing.
Appears in 2 contracts
Samples: Merger Agreement (Alleghany Corp /De), Agreement and Plan of Merger (Alleghany Corp /De)
Financing Obligation. HTI Acquisition will (a) Fermat shall use its reasonable best efforts to do take, or cause to be done taken, all actions and to do, or cause to be done, all things necessary necessary, proper or advisable to arrange and consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause Financing in an amount that, when taken together with cash, cash equivalents and other current financial assets and other immediately available funds, would be sufficient for the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms satisfaction of the Commitment Letter. HTI Acquisition shall not, and shall use commercially reasonable efforts to cause the Equity Investors not to, amend or modify the terms of (i) the Commitment Letters Fermat Group’s payment obligations under this Agreement (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality payment of the Commitment Letters or in a manner Cash Balancing Amount) that would adversely affect are due and payable on the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or Closing Date. Fermat shall not (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment LettersDescartes, which consent shall not be unreasonably withheld, delayed or conditioned) consent or agree to any amendment or modification to, or any portion thereofwaiver of any provision under, become unavailable or terminate or replace the Debt Commitment Letter or the definitive agreements relating to HTI Acquisition the Debt Financing, if such amendment, modification, waiver, termination or replacement (i) decreases the aggregate amount of the Debt Financing to an amount that, when taken together with any remaining commitments for the Debt Financing, any commitment for Financing with conditionality not materially less favorable to Fermat than the conditionality under the Debt Commitment Letter, cash, cash equivalents and other current financial assets and other immediately available funds, would be insufficient for the satisfaction of Fermat’s payment obligations under this Agreement (including payment of the Cash Balancing Amount) that are due and payable on the Closing Date or (ii) imposes new or additional material conditions or otherwise materially expands any of the conditions to the receipt of the Debt Financing or otherwise would or would reasonably be expected to prevent or materially delay the funding or financing described therein or the consummation of the transactions contemplated by this Agreement; provided, that, for the avoidance of doubt Fermat shall be permitted to consent or agree to any amendment or modification, or any waiver of any provision, under the Debt Commitment Letter if such amendment, modification or waiver solely adds lenders, lead arrangers, bookrunners, syndication agents or 1414958.12A-NYCSR03A - MSW similar entities that have not executed the Debt Commitment Letter as of the date hereof as parties thereto. Each of Fermat and Descartes acknowledges and agrees that Fermat’s obligation to consummate the transactions contemplated hereby is not subject to a financing condition under Article VII or otherwise.
(b) Fermat shall keep Descartes reasonably and promptly informed with respect to all material developments concerning the Debt Financing pursuant to the Debt Commitment Letter. Without limiting the foregoing, Fermat agrees to notify Descartes promptly if (i) the Debt Commitment Letter shall expire or be terminated for any reason, (ii) any Financing Source that is a party to any Debt Commitment Letter notifies Fermat in writing that such source no longer intends to provide financing to Fermat on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing therein or ("Substitute Financing"). Prior to the Effective Time, HTI Acquisition will not amend or modifyiii) Fermat receives any written notice, or agree to amend other written communication with respect to, (A) any material breach, default, termination or modify, repudiation by any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is a condition to the lenders' obligations thereunder, without the prior written consent of the lenders party to the Debt Commitment Letters and Letter, (B) any material dispute or disagreement between or among parties to the Debt Commitment Letter with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at the Closing or (C) the occurrence of any other Person whose consent is required pursuant event or circumstance that would reasonably be expected to result in the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person inability of Fermat to have sufficient immediately available funds on the Closing Date to satisfy its payment obligations pursuant to the Commitment Letters. For the avoidance of doubt, nothing contained in under this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other (including payment to of the lenders in addition to those currently contained in Cash Balancing Amount) that are due and payable on the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition obtaining the Acquisition Financing or any Substitute FinancingClosing Date.
Appears in 1 contract
Financing Obligation. HTI Acquisition will use its best efforts to do or cause to be done all things necessary to consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms of the Commitment Letter. HTI Acquisition shall not(a) Purchaser shall, and shall use commercially reasonable best efforts to cause the Equity Investors not each of its Affiliates to, amend use its reasonable best efforts to take all actions and do all things necessary, proper or modify advisable to obtain the proceeds of the Debt Financing in an amount equal to at least the Required Amount on the terms of (i) and subject only to the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts conditions set forth in the Debt Financing Commitment Lettersat or prior to the Closing, or any portion thereofincluding (i) complying with its obligations under the Debt Financing Commitment, become unavailable (ii) maintaining in effect the Debt Financing Commitment and the definitive financing agreements related to HTI Acquisition on the Debt Financing (the “Definitive Agreements”) in accordance with the terms and conditions set forth thereinthereof, HTI Acquisition shall use commercially reasonable efforts (iii) negotiating, entering into and delivering the Definitive Agreements on a timely basis (taking into account the Marketing Periods, as applicable) on terms and conditions (including the flex provisions) contained in the Debt Financing Commitment and without any Prohibited Modification, (iv) satisfying on a timely basis all conditions applicable to obtain substitute financing ("Substitute Financing"). Prior to Purchaser and/or its Affiliates contained in the Effective TimeDebt Financing Commitment and the Definitive Agreements within their control, HTI Acquisition will not amend including the payment of any commitment, engagement or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is placement fees required as a condition to the lenders' Debt Financing, (v) enforcing all of its rights, and using reasonable best efforts to enforce the obligations thereunderof the other parties, under the Debt Financing Commitment and the Definitive Agreements and (vi) consummating, and obtaining the proceeds of, the Debt Financing at or prior to the Closing. Purchaser shall, upon the request of Seller, keep Seller informed on a current and timely basis and in reasonable detail of the status of its efforts to obtain the Debt Financing and of developments concerning the timing of the closing of the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt written notice (A) of any actual or threatened (in writing) violation, breach or default (or, to Purchaser’s Knowledge, any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any violation, breach or default) by any party to the Debt Financing Commitment or any Definitive Agreement or any termination of the Debt Financing Commitment or any Definitive Agreement, (B) of any actual or threatened (in writing) reduction, withdrawal, repudiation or termination of the Debt Financing by any party to the Debt Financing Commitment or (C) if at any time for any reason Purchaser has determined in good faith that it will not be able to obtain all or any portion of the Required Amount of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment or any Definitive Agreement. As soon as reasonably practicable, but in any event within two (2) Business Days following delivery by Seller to Purchaser of written request therefor, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence.
(b) Purchaser shall not, without the prior written consent of Seller: (i) amend, modify, supplement, or waive any of the lenders party conditions to funding contained in the Debt Financing Commitment or any Definitive Agreement or any other provision of, or remedies under, the Debt Financing Commitment or any Definitive Agreement, in each case, to the extent such amendment, modification or supplement could reasonably be expected to have the effect of (A) reducing the amount of the Debt Financing to an amount less than the Required Amount, (B) otherwise adversely affecting the ability of Purchaser in any material respect to timely consummate the transactions contemplated by this Agreement, including the ability to pay the Required Amount in full, (C) adding new or additional conditions or amending, modifying or supplementing any of the existing conditions to the Debt Financing, (D) delaying, preventing or impeding the Closing or making the timely funding of the Debt Financing (in an amount no less than the Required Amount) or satisfaction of the conditions to obtaining the Required Amount under the Debt Financing less likely to occur or (E) adversely affecting the ability of Purchaser to enforce its rights against the other parties to the Debt Financing Commitment Letters or the Definitive Agreements (the effects described in clauses (A) through (E), collectively, the “Prohibited Modification”); or (ii) terminate the Debt Financing Commitment or any Definitive Agreement; provided, however, subject to compliance with the other provisions of this Section 6.8, Purchaser may (1) amend, modify, supplement or waive any provision of the Debt Commitment Documents to add Financing Sources that have not executed the Debt Commitment Documents as of the date hereof, (2) amend the Definitive Agreements to implement any flex provisions contained in the Debt Financing Commitment or (3) otherwise amend, modify or supplement the Debt Financing Commitment or any Definitive Agreement so long as such amendment, modification or supplement could not effect a Prohibited Modification. Purchaser shall promptly deliver to Seller copies of any such amendment, modification, supplement or replacement (with customary redactions solely to the extent consistent with the requirements under Section 5.6). In the event Purchaser amends, modifies, supplements or replaces the Debt Financing Commitment or any Definitive Agreement in accordance with this Section 6.8, references to “Debt Financing,” “Financing Sources,” “Definitive Agreements,” and “Debt Financing Commitment” (and other like terms in this Agreement) as used in this Agreement shall be deemed to refer to the Debt Financing Commitment and/or Definitive Agreement as so amended, modified or supplemented. In the event all conditions to the Debt Financing Commitment have been satisfied (or waived) and all of the conditions set forth in Section 10.1 and Section 10.3 (not including conditions which are to be satisfied by the delivery of documents, or taking of any other Person whose consent action, at the Closing by any party) have been satisfied (or waived), Purchaser shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing in an amount no less than the Required Amount for purposes of consummating the transactions contemplated by this Agreement.
(c) If all or any portion of the Debt Financing becomes unavailable for any reason, Purchaser shall (i) notify Seller in writing of such event and the reasons giving rise to such event, as promptly as practicable following the occurrence of such event, (ii) use reasonable best efforts, and cause each of its Affiliates to use reasonable best efforts, to arrange and obtain, as promptly as possible following the occurrence of such event, alternative financing for any such unavailable portion of the Debt Financing from the same or alternative sources (it being understood that Purchaser shall not be required to pay fees, economics, or other amounts in excess of that contemplated by the Debt Commitment Documents, and the related fee letters and engagement letters, in effect on the date of this Agreement), which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, (A) in an amount sufficient, when added to any portion of the Debt Financing that is required pursuant and will be available, that is equal to or greater than the Required Amount, (B) on terms no less favorable to Purchaser than the Debt Financing Commitment as of the date hereof (taking into account any flex provisions contained therein), (C) containing conditions that (1) are not more onerous to Purchaser than those conditions contained in the Debt Financing Commitment as of the date hereof and (2) could not reasonably be expected to delay the Closing and (D) which does not contain any Prohibited Modification (any such alternative financing, the “Alternative Debt Financing”) and (iii) obtain a new financing commitment letter (together with its related term sheets and fee letters, the “Alternative Debt Financing Commitment”) or a new definitive agreement with respect thereto that provides for such Alternative Debt Financing. In the event Purchaser obtains Alternative Debt Financing in accordance with this Section 6.8, references to “Debt Financing,” “Financing Sources,” and “Definitive Agreements” (and other like terms in this Agreement) as used in this Agreement shall be deemed to include any Alternative Debt Financing (and consequently the term “Debt Financing” shall include any available portion of the then-existing Debt Financing and the Alternative Debt Financing), and the term “Debt Financing Commitment” as used in this Agreement shall be deemed to include any Alternative Debt Financing Commitment.
(d) Without limitation to any other obligation of Purchaser and its Affiliates under this Agreement, prior to, and from and after the commencement of the Initial Marketing Period, Purchaser shall use commercially reasonable efforts (taking into account market conditions, the cost of funding into escrow, the expected timing to Closing and such other factors as Purchaser in good xxxxx xxxxx commercially reasonable) to obtain, at or prior to the Commitment Lettersconclusion of the Initial Marketing Period, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person the proceeds of its obligations pursuant the Debt Financing in an amount equal to at least the Required Amount on the terms and subject only to the Commitment Lettersconditions set forth in the Debt Financing Commitment; provided that, the decision to obtain the Debt Financing during the Initial Marketing Period shall be the sole decision of Purchaser. For During the avoidance Initial Marketing Period, Purchaser shall consult with, and provide reasonably frequent updates on its financing efforts, to the Chief Financial Officer of doubt, nothing Seller.
(e) Purchaser expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Closing and (ii) notwithstanding anything contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders contrary, Purchaser’s obligations hereunder are not conditioned in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition any manner upon Purchaser obtaining the Acquisition Financing Debt Financing, or any Substitute Financingother financing.
Appears in 1 contract
Samples: Transaction Agreement (DOVER Corp)
Financing Obligation. HTI Acquisition will use its best efforts (a) No later than 12:00 pm New York City Time on August 15, 2005 (the "MARKETING PERIOD"), Buyer shall duly execute and deliver to do or cause Lender and Banc of America Securities LLC (with a copy to be done all things necessary Seller) each of the BofA Financing Documents; PROVIDED, HOWEVER, that prior to consummate the Acquisition Financing. HTI Acquisition end of the Marketing Period Buyer shall use commercially have the right to enter into alternative financing arrangements if (i) during the Marketing Period Buyer is able to obtain a commitment from a nationally recognized financial institution (the "ALTERNATE LENDER") for alternative financing for at least $1,000,000,000.00 and which is on terms no less favorable to Buyer and Seller than the BofA Financing Documents; (ii) Buyer provides to Seller the final versions of such documents with a reasonable efforts time to cause the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with review them; (iii) Seller determines that the terms of the alternative financing documents do not contain any conditions to the financing not included in the BofA Financing Documents and are otherwise as favorable to Seller's interests as the BofA Financing Documents (such determination to be evidenced in writing by Seller delivered to Buyer and not to be unreasonably withheld, delayed or conditioned); and (iv) simultaneous with the execution by Buyer and any of its Affiliates and the Alternate Lender and any of its Affiliates of the Alternate Financing Documents, Buyer provides Seller with the Alternate Financing Commitment Letter. HTI Acquisition Certificate duly executed by the Chief Financial Officer or General Counsel of Buyer; PROVIDED, FURTHER, that Buyer shall not, and shall use commercially reasonable efforts be entitled to cause the Equity Investors not to, amend or modify the terms of (i) BofA Financing Documents prior to the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality end of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without Marketing Period upon obtaining the prior written consent of AlleghanySeller of such modifications (which consent shall not be unreasonably withheld, delayed or conditioned). If funds The obtaining of the alternative financing described in this SECTION 7.13(A) shall be referred to as the amounts set forth in "ALTERNATE FINANCING" and the Commitment Letters, documents executed by Buyer or any portion thereofof its Affiliates and the Alternate Lender or any of its Affiliates in connection with the Alternate Financing shall be referred to as the "ALTERNATE FINANCING DOCUMENTS."
(b) Buyer will not, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior to the Effective Time, HTI Acquisition will not amend permit any other Person to, terminate, amend, modify or modify, supplement (or consent or agree to amend the termination, amendment, modification or modify, supplementing of) in any agreement or other document or plan, which, pursuant to respect the terms or conditions of the Commitment Letters, requires the lenders' prior consent to amend or is a condition to the lenders' obligations thereunderany Financing Documents, without the prior written consent of Seller (which consent shall be in the lenders sole and absolute discretion of Seller). Buyer will use its commercially reasonable efforts to obtain the Financing. If any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Documents, Buyer shall use its commercially reasonable efforts to arrange to obtain alternative financing from alternative sources on terms substantially similar to the terms of the Financing Documents and in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event. Buyer shall give Seller prompt notice of any material breach by any party to the Commitment Letters Financing Documents of which Buyer or any of its Affiliates becomes aware or any termination of the Financing Documents. Buyer shall keep Seller informed on a reasonably current basis in reasonable detail of the status of the Financing and any other Person whose consent is required pursuant provide copies of all documents related to the Commitment Letters, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant to the Commitment Letters. For the avoidance of doubt, nothing contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders in addition to those currently contained in the Commitment Letters Financing (other than making their equity contributions pursuant any ancillary documents subject to the Equity Commitment Lettersconfidentiality agreements) in connection with HTI Acquisition obtaining the Acquisition Financing or any Substitute Financingto Seller.
Appears in 1 contract
Samples: Securities and Asset Purchase Agreement (Tupperware Corp)
Financing Obligation. HTI Acquisition will use its best efforts to do or cause to be done all things necessary to consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause the Equity Investors to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms of the Commitment Letter. HTI Acquisition shall not(a) Purchaser shall, and shall use commercially reasonable best efforts to cause the Equity Investors not each of its Affiliates to, amend use its reasonable best efforts to take all actions and do all things necessary, proper or modify advisable to obtain the proceeds of the Debt Financing in an amount equal to at least the Required Amount on the terms of (i) and subject only to the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts conditions set forth in the Debt Financing Commitment Lettersat or prior to the Closing, or any portion thereofincluding (i) complying with its obligations under the Debt Financing Commitment, become unavailable (ii) maintaining in effect the Debt Financing Commitment and the definitive financing agreements related to HTI Acquisition on the Debt Financing (the “Definitive Agreements”) in accordance with the terms and conditions set forth thereinthereof, HTI Acquisition shall use commercially reasonable efforts (iii) negotiating, entering into and delivering the Definitive Agreements on a timely basis (taking into account the Marketing Periods, as applicable) on terms and conditions (including the flex provisions) contained in the Debt Financing Commitment and without any Prohibited Modification, (iv) satisfying on a timely basis all conditions applicable to obtain substitute financing ("Substitute Financing"). Prior to Purchaser and/or its Affiliates contained in the Effective TimeDebt Financing Commitment and the Definitive Agreements within their control, HTI Acquisition will not amend including the payment of any commitment, engagement or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is placement fees required as a condition to the lenders' Debt Financing, (v) enforcing all of its rights, and using reasonable best efforts to enforce the obligations thereunderof the other parties, under the Debt Financing Commitment and the Definitive Agreements and (vi) consummating, and obtaining the proceeds of, the Debt Financing at or prior to the Closing. Purchaser shall, upon the request of Seller, keep Seller informed on a current and timely basis and in reasonable detail of the status of its efforts to obtain the Debt Financing and of developments concerning the timing of the closing of the Debt Financing. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt written notice (A) of any actual or threatened (in writing) violation, breach or default (or, to Purchaser’s Knowledge, any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any violation, breach or default) by any party to the Debt Financing Commitment or any Definitive Agreement or any termination of the Debt Financing Commitment or any Definitive Agreement, (B) of any actual or threatened (in writing) reduction, withdrawal, repudiation or termination of the Debt Financing by any party to the Debt Financing Commitment or (C) if at any time for any reason Purchaser has determined in good faith that it will not be able to obtain all or any portion of the Required Amount of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Financing Commitment or any Definitive Agreement. As soon as reasonably practicable, but in any event within two (2) Business Days following delivery by Seller to Purchaser of written request therefor, Purchaser shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence.
(b) Purchaser shall not, without the prior written consent of Seller: (i) amend, modify, supplement, or waive any of the lenders party conditions to funding contained in the Debt Financing Commitment or any Definitive Agreement or any other provision of, or remedies under, the Debt Financing Commitment or any Definitive Agreement, in each case, to the extent such amendment, modification or supplement could reasonably be expected to have the effect of (A) reducing the amount of the Debt Financing to an amount less than the Required Amount, (B) otherwise adversely affecting the ability of Purchaser in any material respect to timely consummate the transactions contemplated by this Agreement, including the ability to pay the Required Amount in full, (C) adding new or additional conditions or amending, modifying or supplementing any of the existing conditions to the Debt Financing, (D) delaying, preventing or impeding the Closing or making the timely funding of the Debt Financing (in an amount no less than the Required Amount) or satisfaction of the conditions to obtaining the Required Amount under the Debt Financing less likely to occur or (E) adversely affecting the ability of Purchaser to enforce its rights against the other parties to the Debt Financing Commitment Letters or the Definitive Agreements (the effects described in clauses (A) through (E), collectively, the “Prohibited Modification”); or (ii) terminate the Debt Financing Commitment or any Definitive Agreement; provided, however, subject to compliance with the other provisions of this Section 6.8, Purchaser may (1) amend, modify, supplement or waive any provision of the Debt Commitment Documents to add Financing Sources that have not executed the Debt Commitment Documents as of the date hereof, (2) amend the Definitive Agreements to implement any flex provisions contained in the Debt Financing Commitment or (3) otherwise amend, modify or supplement the Debt Financing Commitment or any Definitive Agreement so long as such amendment, modification or supplement could not effect a Prohibited Modification. Purchaser shall promptly deliver to Seller copies of any such amendment, modification, supplement or replacement (with customary redactions solely to the extent consistent with the requirements under Section 5.6). In the event Purchaser amends, modifies, supplements or replaces the Debt Financing Commitment or any Definitive Agreement in accordance with this Section 6.8, references to “Debt Financing,” “Financing Sources,” “Definitive Agreements,” and “Debt Financing Commitment” (and other like terms in this Agreement) as used in this Agreement shall be deemed to refer to the Debt Financing Commitment and/or Definitive Agreement as so amended, modified or supplemented. In the event all conditions to the Debt Financing Commitment have been satisfied (or waived) and all of the conditions set forth in Section 10.1 and Section 10.3 (not including conditions which are to be satisfied by the delivery of documents, or taking of any other Person whose consent action, at the Closing by any party) have been satisfied (or waived), Purchaser shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing in an amount no less than the Required Amount for purposes of consummating the transactions contemplated by this Agreement.
(c) If all or any portion of the Debt Financing becomes unavailable for any reason, Purchaser shall (i) notify Seller in writing of such event and the reasons giving rise to such event, as promptly as practicable following the occurrence of such event, (ii) use reasonable best efforts, and cause each of its Affiliates to use reasonable best efforts, to arrange and obtain, as promptly as possible following the occurrence of such event, alternative financing for any such unavailable portion of the Debt Financing from the same or alternative sources (it being understood that Purchaser shall not be required to pay fees, economics, or other amounts in excess of that contemplated by the Debt Commitment Documents, and the related fee letters and engagement letters, in effect on the date of this Agreement), which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, (A) in an amount sufficient, when added to any portion of the Debt Financing that is required pursuant and will be available, that is equal to or greater than the Required Amount, (B) on terms no less favorable to Purchaser than the Debt Financing Commitment as of the date hereof (taking into account any flex provisions contained therein), (C) containing conditions that (1) are not more onerous to Purchaser than those conditions contained in the Debt Financing Commitment as of the date hereof and (2) could not reasonably be expected to delay the Closing and (D) which does not contain any Prohibited Modification (any such alternative financing, the “Alternative Debt Financing”) and (iii) obtain a new financing commitment letter (together with its related term sheets and fee letters, the “Alternative Debt Financing Commitment”) or a new definitive agreement with respect thereto that provides for such Alternative Debt Financing. In the event Purchaser obtains Alternative Debt Financing in accordance with this Section 6.8, references to “Debt Financing,” “Financing Sources,” and “Definitive Agreements” (and other like terms in this Agreement) as used in this Agreement shall be deemed to include any Alternative Debt Financing (and consequently the term “Debt Financing” shall include any available portion of the then-existing Debt Financing and the Alternative Debt Financing), and the term “Debt Financing Commitment” as used in this Agreement shall be deemed to include any Alternative Debt Financing Commitment.
(d) Without limitation to any other obligation of Purchaser and its Affiliates under this Agreement, prior to, and from and after the commencement of the Initial Marketing Period, Purchaser shall use commercially reasonable efforts (taking into account market conditions, the cost of funding into escrow, the expected timing to Closing and such other factors as Purchaser in good fxxxx xxxxx commercially reasonable) to obtain, at or prior to the Commitment Lettersconclusion of the Initial Marketing Period, which consent(s) shall acknowledge that such amendment or modification does not relieve such lender or other Person the proceeds of its obligations pursuant the Debt Financing in an amount equal to at least the Required Amount on the terms and subject only to the Commitment Lettersconditions set forth in the Debt Financing Commitment; provided that, the decision to obtain the Debt Financing during the Initial Marketing Period shall be the sole decision of Purchaser. For During the avoidance Initial Marketing Period, Purchaser shall consult with, and provide reasonably frequent updates on its financing efforts, to the Chief Financial Officer of doubt, nothing Seller.
(e) Purchaser expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Closing and (ii) notwithstanding anything contained in this Agreement shall obligate any Equity Investor to provide any credit support, guarantee or other payment to the lenders contrary, Purchaser’s obligations hereunder are not conditioned in addition to those currently contained in the Commitment Letters (other than making their equity contributions pursuant to the Equity Commitment Letters) in connection with HTI Acquisition any manner upon Purchaser obtaining the Acquisition Financing Debt Financing, or any Substitute Financingother financing.
Appears in 1 contract
Samples: Transaction Agreement (Terex Corp)
Financing Obligation. HTI Acquisition will (a) Buyer shall, and shall cause its applicable Subsidiaries to, use its reasonable best efforts to do obtain the Debt Financing on a timely basis and on the terms and conditions in the Debt Financing Commitment in an amount sufficient, taken together with Other Available Funds, to satisfy the Required Amount, including (i) complying with its obligations under the applicable Debt Financing Commitments, (ii) maintaining in effect the applicable Debt Financing Commitments or cause to be done all things necessary to consummate the Acquisition Financing. HTI Acquisition shall use commercially reasonable efforts to cause the Equity Investors to comply definitive financing agreements related thereto in accordance with the terms and conditions thereof, (iii) negotiating and entering into definitive agreements with respect to the applicable Debt Financing Commitments on a timely basis on terms and conditions (including the flex provisions) contained therein or otherwise not materially less favorable to Buyer in the aggregate than those contained in the applicable Debt Financing Commitments, (iv) satisfying on a timely basis all conditions applicable to Buyer and/or its Subsidiaries contained in the applicable Debt Financing Commitments (or any definitive agreements related thereto) within their control, including the payment of their respective Equity Commitment Letters any commitment, engagement or placement fees required as a condition to the Debt Financing and (v) enforcing all of its rights under the applicable Debt Financing Commitments (or any definitive agreements related thereto) (provided that Buyer shall not be required to cause HTI Holding pursue such enforcement through litigation) and consummating the applicable Debt Financing at or prior to comply the Closing. Buyer shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (including, upon reasonable request, providing Seller with copies of all definitive agreements and other documents related to the Debt Financing and of material developments concerning the timing of the closing of the Debt Financing). Buyer shall give Seller prompt written notice (A) upon having knowledge of any violation, breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any violation, breach or default) by any party to any of the Debt Financing Commitments or any termination of any of the Debt Financing Commitments, (B) any actual or threatened reduction, withdrawal, repudiation or termination of the Debt Financing by any Financing Source party to the Debt Financing Commitments or (C) if for any reason Buyer has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms contemplated by the applicable Debt Financing Commitments. As soon as reasonably practicable, but in any event within two Business Days following delivery by Seller to Buyer of written request therefor, Buyer shall provide any information reasonably requested by Seller relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence. Notwithstanding the foregoing, it is understood and agreed that the obligations of Buyer with respect to the Debt Financing pursuant to this Section 5.19(a) shall be subject to, and shall not be deemed to be breached by, any reduction, including to zero as applicable, of the commitments in respect of the Debt Financing in accordance with the terms of the Commitment Letter. HTI Acquisition shall notDebt Financing Commitments as in effect on the date of this Agreement, and shall use commercially reasonable efforts to cause as a result of the Equity Investors not to, amend or modify the terms receipt of net proceeds of (i) any Permanent Financing or obtaining of commitments with respect to the Commitment Letters same (including all exhibitsin each case, annexes, schedules, fee letters to the extent permitted hereunder) and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment Letters, or any portion thereof, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior certain dispositions to the Effective Time, HTI Acquisition will not amend or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to extent required in accordance with the terms of the Debt Commitment Letters, requires Letter as in effect on the lenders' prior consent to amend or is a condition date hereof and to the lenders' obligations thereunderextent such proceeds will be used to fund the Required Amount on the Closing Date.
(b) Buyer shall not, without the prior written consent of Seller, amend, modify, supplement or waive any of the lenders party conditions or contingencies to funding contained in the Debt Financing Commitments (or any definitive agreements related thereto) or any other provision of, or remedies under, the Debt Financing Commitments (or any definitive agreements related thereto) or replace all or any portion of the Debt Financing Commitments (including with Permanent Financing), in each case, to the extent such amendment, modification, supplement, replacement or waiver would reasonably be expected to have the effect of (v) reducing the amount of the Debt Financing to an amount that would result in Buyer having insufficient funds (taking into account Other Available Funds) to pay the Required Amount, (w) otherwise adversely affecting in any material respect the ability of Buyer to timely consummate the transactions contemplated by this Agreement, including the ability to pay the Required Amount in full, (x) amending, modifying, supplementing or waiving the conditions or contingencies to the Debt Financing in a manner adverse to Seller or its Subsidiaries, (y) materially delaying the Closing or making the timely funding of the Debt Financing or satisfaction of the conditions or contingencies to obtaining the Debt Financing materially less likely to occur or (z) materially adversely affecting the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitments; provided, however, subject to compliance with the other provisions of this Section 5.19, Buyer may amend, modify, supplement or waive any provision of the Debt Commitment Letters Letter (A) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof or (B) amend the Debt Commitment Letter to implement any “market flex” provisions applicable thereto. In the event all conditions applicable to the Debt Financing Commitments have been satisfied and all of the conditions set forth in Section 7.1 and Section 7.2 (not including conditions which are to be satisfied by the delivery of documents, or taking of any other action, at the Closing by any Party) have been satisfied (or waived), and to the extent such funds are required (taking into account Other Available Funds) to fund the Required Amount, Buyer shall use its reasonable best efforts to cause the Debt Financing Sources to fund the applicable Debt Financing for purposes of consummating the transactions contemplated by this Agreement.
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions of the Debt Financing Commitment (including the flex provisions thereof), Buyer shall (i) notify Seller of such event and the reasons giving rise to such event, as promptly as practicable following the occurrence of such event, (ii) use its reasonable best efforts to arrange to obtain, as promptly as possible following the occurrence of such event, the Debt Financing or such portion of the Debt Financing from the same or alternative sources, which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to any portion of the Debt Financing that is and will be available and any Other Available Funds, to pay in cash the Required Amount (“Alternative Debt Financing”) and (iii) if applicable, obtain a new financing commitment letter (together with its related term sheets, the “Alternative Debt Financing Commitment”) or a new definitive agreement with respect thereto that provides for financing (A) on terms no less favorable to Buyer than the Debt Financing Commitment as of the date hereof (taking into account the flex provisions thereof), (B) containing conditions to draw that (x) are not more onerous to Buyer than those conditions and terms contained in the Debt Financing Commitments as of the date hereof, (y) would not reasonably be expected to materially delay the Closing, and (z) do not materially adversely affect the ability of Buyer to enforce its rights against the other Person whose consent is required pursuant parties to the Commitment Letters, which consent(sAlternative Debt Financing Commitments (including all definitive documentation) shall acknowledge that such amendment or modification does not relieve such lender or other Person of its obligations pursuant relative to the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitment Letters. For as in effect on the avoidance date hereof or in the related definitive agreements, and (C) in an amount that is sufficient, when added to any portion of doubtthe Debt Financing that is and will be available and any Other Available Funds, to pay in cash the Required Amount and all other amounts required to be paid by Buyer at Closing in connection with the transactions contemplated by this Agreement; provided that nothing contained in this Section 5.19 shall require, and in no event shall the “reasonable best efforts” of Buyer or any of its Subsidiaries be deemed or construed to require, Buyer or any such Subsidiary to seek or accept the Debt Financing or any Alternative Financing on terms materially less favorable in the aggregate than the terms and conditions described in the Debt Financing Commitments as in effect on the date of this Agreement (including the exercise of “market flex” provisions) as determined in the reasonable judgment of Buyer. In such event, the term “Debt Financing” as used in this Agreement shall obligate be deemed to include any Equity Investor Alternative Debt Financing (and consequently the term “Debt Financing” shall include any available portion of the then-existing Debt Financing and the Alternative Debt Financing), and the term “Debt Financing Commitment” as used in this Agreement shall be deemed to provide include any credit support, guarantee Alternative Debt Financing Commitment. It is understood and agreed that reduction of commitments in respect of the Debt Financing in accordance with the provisions of the Debt Financing Commitments as in effect on the date of this Agreement as a result of Buyer obtaining any Permanent Financing permitted hereunder or other payment receipt of net proceeds of certain dispositions as required under the Debt Commitment Letter as in effect on the date of this Agreement that will be used to fund the Required Amount on the Closing Date shall not be deemed to constitute an unavailability of any portion of the Debt Financing for purposes of this Section 5.19(c) and that in any event committed Permanent Financing (to the lenders extent permitted hereunder to replace the Debt Financing Commitments) may reduce (dollar-for-dollar) the Debt Financing Commitments and such reduction shall not be a breach of this Section 5.19(c) so long as the (x) net proceeds of such Permanent Financing are to be made available to fund the Required Amount on the Closing Date, (y) such Permanent Financing (other than any such Permanent Financing that does not reduce the committed amount of the Debt Financing until net proceeds of such Permanent Financing are actually received by Buyer (whether directly or in addition escrow for such purpose with conditions to release from escrow that are no worse for closing certainty than the conditions in the Debt Commitment Letter as of the date hereof)) does not have conditions to funding that are more onerous to Buyer than those currently conditions and terms contained in the Debt Commitment Letters Letter as of the date hereof and (other than making their equity contributions pursuant z) such Permanent Financing would not reasonably be expected to materially delay the Closing.
(d) Buyer expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Equity Commitment LettersClosing and (ii) notwithstanding anything contained in connection with HTI Acquisition this Agreement to the contrary, Buyer’s obligations hereunder are not conditioned in any manner upon Buyer obtaining the Acquisition Financing Debt Financing, or any Substitute Financingother financing.
Appears in 1 contract
Financing Obligation. HTI Acquisition will (a) Each of Acquiror and Parent shall, and shall cause their applicable Subsidiaries to, use its reasonable best efforts to do obtain the Financing on or prior to the Closing Date in an amount, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this Agreement, sufficient to pay the Required Amount, including by (i) complying with its obligations under the Debt Financing Commitment Letter, (ii) maintaining in effect the Debt Financing Commitment Letter or the definitive financing agreements related to the Financing (the “Definitive Agreements”) in accordance with the terms and conditions thereof, (iii) negotiating and entering into Definitive Agreements on a timely basis on terms and conditions (including any “market flex” provisions) contained in the Debt Financing Commitment Letter or such other terms and conditions as Parent may determine, so long as such other terms and conditions would not constitute a Prohibited Modification, (iv) enforcing its rights under the Debt Financing Letters or the Definitive Agreements, (v) satisfying, or causing to be satisfied (or, if applicable, obtaining waivers of), on or prior to the Closing Date all conditions applicable to Acquiror, Parent and/or their Subsidiaries contained in the Debt Financing Commitment Letter (or any Definitive Agreements), including the payment of any commitment, engagement or placement fees required as a condition to the initial funding of the Financing and (vi) otherwise taking, or causing to be taken, all actions and to do, or cause to be done done, all things reasonably necessary, proper and advisable to arrange and obtain the Financing; provided that, notwithstanding anything herein to the contrary, the documentation related to the bridge loan facility contemplated by the Debt Financing Commitment Letter and the funding thereunder shall not be required unless and until necessary to obtain funds sufficient to pay the Required Amount on the Closing Date. Acquiror shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing, including, for the avoidance of doubt, notifying the Company of any reduction in the aggregate principal amount of the Debt Financing in connection with Acquiror or Parent obtaining other Financing in lieu thereof as contemplated by the Debt Financing Commitment Letter and permitted hereby and thereby. Acquiror shall give the Company prompt written notice (A) upon having knowledge of any material violation, material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material violation, material breach or material default) by any party to the Debt Financing Commitment Letter or the Definitive Agreements or any early termination of the commitments thereunder (other than any termination in accordance with the terms thereof), (B) of any written notice or other written communication from any Debt Financing Source with respect to any actual or threatened breach, default, termination or repudiation by any party to the Debt Financing Commitment Letter or the Definitive Agreements of any provision thereof or (C) if for any reason Acquiror has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms contemplated by the Debt Financing Commitment Letter or the Definitive Agreements in an amount sufficient, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Acquisition FinancingMerger and the other transactions contemplated by this Agreement, to pay the Required Amount. HTI Acquisition As soon as reasonably practicable, Acquiror shall use commercially reasonable efforts provide any information reasonably requested by the Company relating to cause the Equity Investors any circumstance referred to comply with the terms of their respective Equity Commitment Letters and to cause HTI Holding to comply with the terms in clauses (A) through (C) of the Commitment Letter. HTI Acquisition shall not, and shall use commercially reasonable efforts to cause the Equity Investors not to, amend or modify the terms immediately preceding sentence.
(b) Neither of (i) the Commitment Letters (including all exhibits, annexes, schedules, fee letters and other ancillary documents) in a manner that would increase the conditionality of the Commitment Letters or in a manner that would adversely affect the ability of HTI Acquisition to consummate the transactions provided for herein or the likelihood of the Merger or (ii) the Equity Commitment Letters, in each case without the prior written consent of Alleghany. If funds in the amounts set forth in the Commitment Letters, or any portion thereof, become unavailable to HTI Acquisition on the terms and conditions set forth therein, HTI Acquisition shall use commercially reasonable efforts to obtain substitute financing ("Substitute Financing"). Prior to the Effective Time, HTI Acquisition will not amend or modify, or agree to amend or modify, any agreement or other document or plan, which, pursuant to the terms of the Commitment Letters, requires the lenders' prior consent to amend or is a condition to the lenders' obligations thereunderParent nor Acquiror shall, without the prior written consent of the lenders party Company, amend, modify, supplement, waive (or otherwise grant consent under) the Debt Financing Commitment Letter (or any Definitive Agreement) or replace (including via the issuance of New Company Notes (as defined in the Debt Financing Commitment Letter as in effect on the date hereof) or the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect on the date hereof)) all or any portion of the commitments in respect of the Debt Financing or, if applicable, provided under the Definitive Agreements, in each case, to the extent such amendment, modification, supplement, replacement or waiver would reasonably be expected to (u) reduce the amount of the Debt Financing to an amount that would result in Acquiror having insufficient funds, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger or the other transactions contemplated by this Agreement, to pay the Required Amount, (v) otherwise adversely affect the ability of Acquiror to consummate the transactions contemplated by this Agreement on the Closing Date, including the ability to pay the Required Amount in full, (w)(i) impose new or additional conditions precedent to the initial funding of the Debt Financing other than as contemplated by the Debt Financing Commitment Letter (as in effect on the date hereof) (or the Definitive Agreements, as applicable) or (ii) otherwise modify the conditions precedent to the initial funding of the Debt Financing (as in effect on the date hereof) in a manner reasonably expected to delay, prevent or impede the funding of the Debt Financing (or satisfaction of the conditions precedent to the Debt Financing) on the Closing Date or make such funding materially less likely to occur, (x) delay in any material respect the Closing, (y) adversely affect the termination provisions of the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) or (z) adversely affect the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) (clauses (u) through (z), “Prohibited Modifications”); provided, however, subject to compliance with the other provisions of Section 6.18, Xxxxxx and Acquiror may amend, modify, supplement or waive any provision of the Debt Financing Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment Letter as of the date hereof, in each case, as contemplated by the Debt Financing Commitment Letter on the date hereof. As soon as reasonably practicable, Acquiror will provide the Company with true, correct and complete executed copies of any amendment or supplement to, or modification of or waiver under, the Debt Financing Letters (it being agreed that copies of any fee letters may be delivered in redacted form removing only the fee amounts, pricing terms, pricing caps, “market flex” provisions and other economic terms therein). Notwithstanding anything to the contrary in the foregoing, to the extent that the Debt Financing contemplated by the Debt Financing Commitment Letter is replaced in whole or in part by the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect on the date hereof), the parties hereto acknowledge and agree that the definitive documentation with respect to such Qualifying Loan Facility shall constitute Definitive Agreements and such Qualifying Loan Facility shall constitute a Debt Financing for purposes of, and shall be subject to the provisions of, this Section 6.18(b) and Section 6.18(c).
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions of the Debt Financing Commitment Letter (except in accordance with its terms) (including the “market flex” provisions thereof), Acquiror shall (i) notify as soon as reasonably practicable (and in any event within three (3) Business Days) the Company of such event and (ii) use its reasonable best efforts to obtain, on or prior to the Closing Date, the alternative financing from the same or alternative sources, which may include one or more of a loan financing, an offering and sale of notes, or any other Person whose consent financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to any portion of the Debt Financing that is required pursuant and will be available and cash on hand and other sources of available funds, to pay in cash the Commitment Letters, which consent(s) shall acknowledge Required Amount on terms and conditions that such amendment or modification does would not relieve such lender or other Person of its obligations pursuant to the Commitment Letters. For the avoidance of doubt, constitute a Prohibited Modification; provided that nothing contained in this Section 6.18 shall require, and in no event shall the “reasonable best efforts” of Parent, Acquiror or any of their Subsidiaries be deemed or construed to require, Parent, Acquiror or any such Subsidiary to seek or accept such alternative financing on terms materially less favorable in the aggregate than the terms and conditions described in the Debt Financing Commitment Letter (including the exercise of “market flex” provisions) as in effect on the date of this Agreement, as determined in the reasonable judgment of Acquiror. In such event, the term “Debt Financing” as used in this Agreement shall obligate be deemed to include any Equity Investor such alternative debt financing, and the term “Debt Financing Commitment Letter” as used in this Agreement shall be deemed to provide include any credit support, guarantee or other payment commitment letter entered into in respect of any such alternative debt financing.
(d) Acquiror expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the lenders in addition to those currently Closing and (ii) notwithstanding anything contained in the Commitment Letters (other than making their equity contributions pursuant this Agreement to the Equity Commitment Letters) contrary, Acquiror’s obligations hereunder are not conditioned in connection with HTI Acquisition any manner upon Acquiror obtaining the Acquisition Financing Debt Financing, or any Substitute Financingother financing.
Appears in 1 contract
Samples: Merger Agreement (Kellanova)
