Financing. Parent has made available to the Company a true, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Brookfield Property Partners L.P.), Agreement and Plan of Merger (Brookfield Asset Management Inc.), Agreement and Plan of Merger (GGP Inc.)
Financing. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02(b), Parent will have available to it at the Closing, sufficient cash, available lines of credit or other sources of immediately available funds to consummate the Merger and to pay the aggregate Merger Consideration to the Exchange Agent and any other amounts required to be paid by Parent in connection with the consummation of the transactions contemplated hereby to which it is a party and to pay all related fees and expenses of Parent and Merger Sub, including any repayment or refinancing of any outstanding indebtedness of Parent, the Company, and their respective Subsidiaries contemplated by, or required in connection with the transactions described in, this Agreement or the Commitment Letter (such amounts, the “Merger Amounts”), and there is no restriction on the use of such cash, available lines of credit or other sources of immediately available funds for such purposes. Parent has made available accepted and delivered to the Company a true, complete and correct copy copy, including all exhibits, schedules or amendments thereto, of (i) the fully executed commitment letter, dated March 26as of the date hereof, 2018from Xxxxxx Xxxxxxx Senior Funding, among Inc. (the “Commitment Parties”) to Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentCommitment Letter”), pursuant to which the lenders party thereto Commitment Parties have committed, upon the terms and subject to the terms and conditions therein, to lend the amounts set forth therein (subject to any “market flex” provisions included in the “Committed Financing”) for fee letters dated the purposes of, among other things, funding the Transactions and related fees and expenses and date hereof referred to therein (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedcollectively, the “Fee Letter”), true and complete copies of each of which have been delivered to the Company redacted only with respect to fees, economic terms, pricing caps, “market flex” andand other provisions that are customarily redacted in connection with transactions of this type and that would not in any event adversely affect the conditionality, together with enforceability, availability, termination or amount of the Financing CommitmentFinancing), to provide the financing set forth in the Commitment Letter (the “Financing Commitment PapersFinancing”). The Financing Financing, when funded in accordance with the Commitment Papers have Letter and giving effect to any “market flex” provision in or related to the Commitment Letter (including with respect to fees and original issue discount), shall provide Parent with cash proceeds on the Closing Date in an amount at least equal to the Merger Amounts As of the date of this Agreement, the Commitment Letter has not been amended or modified in any manner prior to the date of this Agreement (nor is any such amendment or modification contemplated except (i) to add additional commitment parties as expressly contemplated in the Commitment Letter or (ii) to include commitments with respect to a revolving credit facility (or an amendment of Parent’s existing revolving credit facility)), and as of the date of this Agreement the respective commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and Neither Parent nor Merger Sub has entered into any agreement, side letter, contract or other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (understandings or the modification or expansion of any existing conditions) with respect arrangement relating to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered Letter and the Fee Letter or as permitted under Section 6.11. The Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Parent and, to the Company on or prior Knowledge of Parent and Merger Sub, a valid, binding and enforceable obligation of the Commitment Parties, to provide the financing contemplated thereby subject only to the date hereofsatisfaction or waiver of the conditions precedent set forth in the Commitment Letter and, in each case, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors or by general principles of equity. Parent has fully paid (or caused to be paid) any and all commitment fees or and other fees required to be paid by it in connection with the Financing Commitment amounts, if any, that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as date of this Agreement in connection with the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtFinancing. As of the date hereofof this Agreement, there are no conditions precedent related to assuming the funding accuracy of the full amount representations and warranties of the Committed Financing, other than as expressly Company set forth in Article III such that the Financing Commitment Papers delivered to condition set forth in Section 7.02(a) is satisfied, the performance by the Company on or prior to of its obligations under this Agreement such that the date hereof. As condition set forth in Section 7.02(b) is satisfied, and the satisfaction of the date hereofconditions set forth in Section 7.01, and assuming completion of the Marketing Period, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach or default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent Parent, or, to the Knowledge of ParentParent or Merger Sub, any other party thereto under the Financing Commitment, in each case, under the terms Commitment Letter. As of the Committed Financingdate of this Agreement, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) assuming the accuracy of the representations and warranties set forth in Article IIIIII such that the condition set forth in Section 7.02(a) is satisfied, (ii) the performance by the Company and of its Subsidiaries of the covenants contained in obligations under this Agreement such that the condition set forth in Section 7.02(b) is satisfied, and (iii) the satisfaction of the conditions set forth in Article VII are satisfied at the Charter Closing DateSection 7.01, as and assuming completion of the date hereofMarketing Period, neither Parent nor Merger Sub has no any reason to believe that Parent will be unable to satisfy on a timely basis any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied pursuant to the Commitment Letter on or prior to the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. , nor does Parent affirms have Knowledge that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsFinancing Sources will not perform its obligations thereunder. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing (including pursuant to any “market flex” provisions included in the Fee Letter), other than the conditions precedent expressly set forth in the Commitment Letter delivered to the Company on the date hereof. Parent and Merger Sub understand and acknowledge that under the terms of this Agreement, Parent’s and Merger Sub’s obligations to consummate the Merger are not in any way contingent upon or otherwise subject to Parent’s or Merger Sub’s consummation of any financing arrangements, Parent’s or Merger Sub’s obtaining of any financing or the availability, grant, provision or extension of any financing to Parent or Merger Sub.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (CMC Materials, Inc.), Agreement and Plan of Merger (CMC Materials, Inc.), Agreement and Plan of Merger (Entegris Inc)
Financing. As of the date of this Agreement, Parent has made available delivered to the Company a true, complete and correct copy copies of (i) the fully executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) Commitment Letter and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the fully executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it executed in connection with the Financing Commitment that are payable on (with only fee amounts, dates and certain other economic terms, including in respect of the “market flex” and “securities demand” provisions, redacted) (none of which would adversely affect the amount or prior to availability of the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as Financing other than through original issue discount). As of the date hereof, each of the Financing Commitment Papers Letter is in full force and effect and is constitutes the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that thereto (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other forms laws affecting creditors’ rights generally and general principles of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity). As of the date hereof, there the Commitment Letter and Fee Letter have not been amended or modified in any respect and, to the Knowledge of Parent, the commitments in the Commitment Letter have not been withdrawn or terminated. There are no conditions precedent related to the funding of the full amount of the Committed Financing on the terms set forth in the Commitment Letter (as such terms may be altered in accordance with the “market flex” provisions set forth in the Fee Letter executed in connection with the Financing, ) other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofLetter. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of breach by Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under Commitment Letter. Subject to the terms and conditions of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing DateCommitment Letter, as of the date hereof, assuming satisfaction of the conditions set forth in Section 8.1 and Section 8.2, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letter, together with other financial resources of Parent, including its cash on hand and marketable securities, and cash on hand of the Company and its Subsidiaries, will, in the aggregate, be sufficient to fund the Cash Consideration, the cash payable to holders of Company RSU Awards, pursuant to Section 1.8, the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Combination as of the date hereof (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Combination, including premiums and fees incurred in connection therewith (the “Required Indebtedness”)), and all other fees and expenses incurred by Parent, Merger Sub 1 and Merger Sub 2 in connection with the Combination and the other transactions contemplated hereby. Assuming the satisfaction of the conditions set forth in Sections 8.1 and 8.2, if the Closing were to occur on the date hereof, the incurrence of the indebtedness contemplated by the Commitment Letter to be incurred on the Closing Date, including the liens and guarantees provided in connection therewith as set forth in the Commitment Letter, and the consummation of the transactions contemplated by this Agreement would not result in a default or event of default under the Parent Existing Notes or the indenture governing the Parent Existing Notes. As of the date hereof, assuming satisfaction of the conditions set forth in Sections 8.1 and 8.2, Parent has no reason to believe that either it or any other party will be unable to satisfy on a timely basis any condition of the conditions to Financing under the availability of Commitment Letter or any related Fee Letter or that the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing Letter will not be made available to Parent on the Charter Closing Date. As of the date of this Agreement, other than the Commitment Letter and Fee Letter, there are no other letters, agreements or understandings (other than customary non-disclosure agreements and diligence non-reliance letters) between Parent, on the one hand, and the Financing Sources, on the other hand, that could have an Adverse Effect on the Financing. Parent affirms that it is not a condition has fully paid all fees and expenses and other amounts required to be paid on or prior to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any date of its other obligations under this Agreement that Parent obtain pursuant to the Committed Financing or any other financing for or related to any of the TransactionsCommitment Letter.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Level 3 Communications Inc), Agreement and Plan of Merger (Centurylink, Inc)
Financing. Parent has made available (a) Prior to the Company a trueCharter Closing, complete Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and correct copy do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the proceeds of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to on the terms and conditions thereindescribed in the Financing Commitment (or any other Financing in lieu thereof) (subject to any amendments, modifications, waivers or replacements not prohibited by this Section 6.19(a)), including using reasonable best efforts to lend the amounts set forth therein (the “Committed Financing”i) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with maintain in effect the Financing Commitment, (ii) satisfy on a timely basis (or obtain a waiver of) all conditions to funding the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement Committed Financing, (iii) negotiate and as of the date of this Agreement the respective commitments contained enter into definitive agreements with respect thereto on terms and conditions described in the Financing Commitment have (subject to any amendments, modifications, waivers or replacements not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditionsprohibited by this Section 6.19(a)) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereofDate, each of (iv) enforce its rights under the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (yv) in the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no event that all conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on (or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitmentin lieu thereof) have been satisfied, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by cause the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of other Persons providing the Committed Financing contemplated by the (or any other Financing Commitment applicable in lieu thereof) to it will not be satisfied fund on the Charter Closing Date or that the Committed Financing will (or any other Financing in lieu thereof) required to consummate the Transactions. To the extent requested by the Company from time to time, Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to obtain the Financing (or Alternative Financing) and provide to the Company copies of all material documents related to the Financing (or Alternative Financing). In the event any portion of the Committed Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Financing Commitment (and subject to any amendments, modifications or replacements not be made available prohibited by this Section 6.19(a)) prior to Parent on the Charter Closing Date. Date for any reason (A) Parent affirms that it is not a condition shall promptly notify the Company in writing and (B) Parent shall use reasonable best efforts to obtain, as promptly as practicable following the Charter Closingoccurrence of such event, alternative financing (the Merger Closing and “Alternative Financing”) in an amount sufficient to consummate the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related Transactions (after giving effect to any committed financing); provided, that such Alternative Financing would not reasonably be expected to prevent, impede or delay the consummation of the Transactions.; provided, further that Parent shall have no obligation to accept (i) any fees, interest or other economic terms (taken as a whole) that are less favorable in any respect to Parent than the fees,
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Brookfield Property Partners L.P.), Agreement and Plan of Merger (Brookfield Asset Management Inc.), Agreement and Plan of Merger (GGP Inc.)
Financing. Parent has made available delivered to the Company a Company, as of the date hereof, true, complete and correct copy accurate copies of (i) the an executed commitment letterletter and the Redacted Fee Letter, each dated March 26, 2018the date hereof, among Parent (or its applicable Affiliate) Parent, Merger Sub and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, providing for the debt financing described therein (being collectively referred to as the “Financing CommitmentSenior Financing”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein ) (the “Committed FinancingSenior Commitment Letters”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) an executed Series A Preferred Stock Purchase Agreement, dated the executed fee letter associated therewith; provideddate hereof, such fee letter may be redacted between Parent and the investor party thereto, providing for the financing described therein (being collectively referred to as described below (as so redacted, the “Fee LetterPreferred Financing”) (the “Financing Agreement” and, together with the Financing CommitmentSenior Commitment Letters, the “Financing Commitment PapersCommitments”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there Commitments are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as force and when they become due and payable on or prior to the Charter Closing Date and effect as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the are legal, valid, valid and binding and enforceable obligations of Parent or its applicable Affiliate party theretoParent, as applicableMerger Sub (with respect to the Senior Commitment Letter), and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are (A) no conditions precedent related to the funding amendment or modification of the full amount of Financing Commitments has been made or is contemplated and (B) the Committed Financing, other than as expressly set forth respective commitments contained in the Financing Commitment Papers delivered to Commitments have not been withdrawn, terminated or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Company Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in or expressly contemplated by the Financing Commitments (including any “market flex” provisions applicable to the Financing Commitments). Assuming (x) the Financing is funded in accordance with the Financing Commitments and (y) the Company is not in breach of any of its representations, warranties, covenants or agreements contained in this Agreement such that the conditions to Closing set forth in Section 6.1 and Section 6.3 are not capable of being satisfied, the net proceeds contemplated from the financing described in the Financing Commitments (the “Financing”), together with cash on hand of the Company and its Subsidiaries on the Closing Date, will, in the aggregate, be sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement, including the payment of all amounts required to be paid pursuant to Article II and the payment of any debt required to be repaid, refinanced, redeemed, retired, cancelled, terminated or otherwise satisfied in connection with the Merger and of all fees, expenses and amounts required to be paid in connection with consummating the Merger and the Financing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Sub or, to the Knowledge of Parent, any other party thereto thereto, under the Financing CommitmentCommitments, in each case, under provided that Parent is not making any representation or warranty regarding the terms effect of any inaccuracy of the Committed Financing, other than any such default, representations and warranties in Article III or breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Company of any of its covenants hereunder. As of the date of this Agreement, Parent (or its Affiliate) does not have any reason to believe that any of the conditions to the satisfaction Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub as of the applicable Financing Sources. Assuming (i) Effective Time, provided that Parent is not making any representation regarding the accuracy of the representations and warranties set forth in Article III, (ii) the performance or compliance by the Company and of its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as hereunder. As of the date hereofof this Agreement, there are no side letters or other Contracts to which Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or Affiliates is a party related to any the funding or investing, as applicable, of the Transactionsfull amount of the Financing other than (1) as expressly set forth in the Financing Commitments, (2) any customary engagement letter(s) and non-disclosure agreements(s), and (3) as do not impact the conditionality, availability or aggregate amount of the Financing. Promptly following the funding thereof, Parent will contribute the proceeds of the Preferred Financing to Merger Sub.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (American Greetings Corp), Agreement and Plan of Merger (American Greetings Corp), Agreement and Plan of Merger (American Greetings Corp)
Financing. Parent (a) Purchaser has made available delivered to the Company a true, Seller true and complete and correct copy copies of (i) the a duly executed commitment letter, dated March 26as of the date hereof, 2018between Purchaser and GSO Capital Partners LP and (ii) a duly executed commitment letter, among Parent dated as of the date hereof, between Purchaser and Bank of America, N.A., and Fifth Third Bank (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentDebt Commitment Letters”) (subject to redaction so long as such redaction does not cover terms that would adversely affect the conditionality or availability of the Debt Financing), pursuant to which the lenders party counterparties thereto have committed, subject to the terms and conditions thereinthereof (including, to the extent required in accordance therewith, the exercise of so-called “flex” provisions in the Fee Letter), to lend the amounts set forth therein (the “Committed Debt Financing”). Assuming the funding in full of the Debt Financing on the Closing Date, Purchaser on the Closing Date will have, together with cash on hand and available borrowing under existing credit facilities, sufficient funds in immediately available cash, to (A) for pay an amount in cash equal to the purposes of, among other things, funding the Transactions amounts set forth in Section 3.02(a); (B) pay any and related all fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it Purchaser in connection with the Financing transactions contemplated by this Agreement and the Debt Financing; and (C) satisfy all other payment obligations of Purchaser contemplated hereunder (including the payment at Closing of unpaid Transaction Expenses). Purchaser has also delivered to Seller a true and complete copy of any fee letter in connection with the Debt Commitment Letters (any such fee letter, a “Fee Letter”) (subject to redaction so long as such redaction does not cover terms (other than the actual amount of fees that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as subject of the date hereof, each of Fee Letter) that would adversely affect the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent conditionality or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Debt Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions).
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)
Financing. Parent Anthem has made available delivered to the Company a true, complete and correct copy of Cigna (i) a correct and complete fully executed copy of the executed commitment letter, dated March 26as of July 23, 20182015, among Parent Anthem, Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Credit Suisse AG, Credit Suisse Securities (or its applicable AffiliateUSA) LLC, UBS Securities LLC and the financial institutions party thereto (UBS AG, including all exhibits, schedules schedules, annexes and annexes thereto, collectivelyamendments to such letter in effect as of the date of this Agreement and (ii) a correct and complete fully executed copy of the fee letter referenced therein (together, the “Financing CommitmentCommitment Letter”) (it being understood that such fee letter has been redacted to omit the fee amounts). Pursuant to, pursuant to which the lenders party thereto have committed, and subject to the terms and conditions thereinof, the Commitment Letter, the commitment parties thereunder have committed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, set forth in such fee letter may be redacted as described below (as so redacted, the “Fee Commitment Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have Letter has not been amended amended, restated or otherwise modified or waived prior to the date execution and delivery of this Agreement Agreement, and as of the date of this Agreement the respective commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofexecution and delivery of this Agreement. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as As of the date hereofexecution and delivery of this Agreement, each of the Financing Commitment Papers Letter is in full force and effect and is constitutes the legal, validvalid and binding obligation of each of Anthem and, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of ParentXxxxxx, xxx other parties thereto, enforceable in accordance with its terms against Anthem and, to the Knowledge of Anthem, each of the other parties thereto, except that (x) enforceability may be subject to as limited by laws affecting the Enforceability Limitations and (y) the remedy enforcement of specific performance and injunctive and other forms of creditors’ rights generally, by general equitable relief may be subject to equitable defenses and to principles or by the discretion of the court any Governmental Entity before which any proceeding therefor seeking enforcement may be brought. As of the date hereof, there There are no conditions precedent related to the funding of the full amount of the Committed FinancingFinancing pursuant to the Commitment Letter, other than as expressly set forth in the Financing Commitment Papers delivered Letter. Subject to the Company on or prior terms and conditions of the Commitment Letter, and assuming the accuracy of Cigna’s representations and warranties contained in Section 3.2 in all material respects, the net proceeds contemplated from the Financing, together with other financial resources of Anthem, will, in the aggregate, be sufficient for the payment of the Cash Consideration, any other amounts required to be paid pursuant to Article II and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the date hereofMergers and the other transactions contemplated hereby. As of the date hereofexecution and delivery of this Agreement, (i) no event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would constitute a default default) or breach, or result in a failure to satisfy a condition precedent to the availability of the Committed Financingprecedent, in each case, on the part of Parent Anthem or, to the Knowledge of ParentAnthem, any other party thereto under to the Financing Commitment, in each caseCommitment Letter, under the terms of the Committed FinancingCommitment Letter, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no Anthem does not have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any other funds necessary for the satisfaction of all of Anthem’s and its other Subsidiaries’ obligations under this Agreement that Parent obtain will not be available to Anthem on the Committed Financing Closing Date. Anthem has fully paid all commitment fees or any other financing for fees to the extent required to be paid on or related prior to any the date of this Agreement in connection with the TransactionsFinancing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Anthem, Inc.), Agreement and Plan of Merger (Cigna Corp)
Financing. At the Effective Time, Parent will have and will make available to Merger Subsidiary sufficient funds to consummate the transactions (including sufficient funds necessary to acquire all Shares of the Company pursuant to the Offer and the Top-Up Option, to repay all of the Company’s outstanding indebtedness, other than accrued trade debt which shall be assumed by the Surviving Company, and to pay all fees and expenses and other amounts related to the Merger, the Offer and other transactions contemplated by this Agreement). As of the date hereof, Parent has made available delivered to the Company a true, correct and complete and correct copy copies of (i) the one or more executed commitment letterletters, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, amendments thereto (such letters collectively, the “Financing CommitmentLetters”), pursuant ) from the financial institutions identified therein (the “Financing Sources”) with respect to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend one or more debt and/or equity financings in the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The As of the date hereof, none of the Financing Commitment Papers Letters has been amended or modified, no such amendment or modification is contemplated, and the respective obligations and commitments contained in such letters have not been withdrawn, terminated, rescinded, amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof there are no side letters hereof, Parent or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent Merger Subsidiary has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Letters that are were payable on or prior to the date hereof. Assuming the Financing is funded in accordance with the Financing Letter, Parent willas applicable, directly or indirectlythe net proceeds contemplated by the Financing Letters, continue will in the aggregate be sufficient for Merger Subsidiary and the Surviving Corporation, on and after the date of the Closing, (A) to acquire all of the Shares of the Company pursuant to the Offer and the Top-Up Option, (B) to repay all of the Company’s outstanding indebtedness other than accrued trade debt, which shall be assumed by the Surviving Company and (C) to pay all fees and expenses and other amounts related to the Merger, the Offer and other transactions contemplated by this Agreement. The Financing Letters are in full any such amounts required to be paid as force and when they become due and payable on or prior to the Charter Closing Date and effect as of the date hereof, each and, subject to the conditions precedent and/or contingencies to the obligations of the parties set forth in the Financing Commitment Papers is Letters to enter in full force to Financing Agreements, each constitutes a valid and effect and is the legal, valid, binding and enforceable obligations obligation of Parent or its applicable Affiliate party theretoand Merger Subsidiary, as applicableand, and to the Knowledge of Parent, each of the other parties party thereto, except that (x) enforceability may be subject to enforceable against such party in accordance with its terms. To the Enforceability Limitations and (y) the remedy Knowledge of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than Parent as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Subsidiary or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article IIIthereto, (ii) to the performance by Knowledge of Parent, a failure of any condition to the Company and its Subsidiaries of the covenants contained in this Agreement and Financing or (iii) to the conditions set forth Knowledge of Parent otherwise result in Article VII are satisfied at any portion of the Charter Closing Date, as Financing being unavailable on the date of the Closing. As of the date hereof, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent or Merger Subsidiary in the full contemplated amount thereof on the date of the Closing. There are no conditions precedent or contingencies to the obligations of the parties under the Financing Letters to make the full amount of the Financing available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to terms therein except as expressly set forth in the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsLetters.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dune Energy Inc), Agreement and Plan of Merger (Eos Petro, Inc.)
Financing. Parent Buyer has made available delivered to Seller true and complete fully executed copies of the Company a true, complete and correct copy of (i) the executed commitment letterCommitment Letter, dated March 26as of December 2, 20182014, by and among Parent (or its applicable Affiliate) Buyer, X.X. Xxxxxx Securities LLC, JPMorgan Chase Bank, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Bank of America, N.A., Xxxxx Fargo Securities LLC, Xxxxx Fargo Bank, N.A. and the financial institutions party thereto (U.S. Bank National Association, including all exhibits, schedules schedules, annexes and annexes thereto, collectively, amendments to such letter in effect as of the date of this Agreement (the “Financing CommitmentDebt Commitment Letter”), pursuant to which the lenders party thereto have committedwhich, and subject to the terms and conditions thereinthereof, each of the parties thereto (other than Buyer) have severally agreed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, set forth in such fee letter may be redacted as described below (as so redacted, the “Fee Debt Commitment Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Debt Commitment Papers have Letter has not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement Agreement, and as of the date of this Agreement the respective commitments contained in the Financing Debt Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofof this Agreement. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing The Debt Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers Letter is in full force and effect effect, and Buyer is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicablenot, and to the Knowledge knowledge of ParentBuyer, each none of the other parties theretoFinancing Sources are, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion in default or breach of the court before which any proceeding therefor may be brought. As terms of the date hereof, there Debt Commitment Letter. There are no conditions precedent or contingencies related to the funding of the full amount of the Committed Financing, Financing other than as expressly set forth described in the Financing Debt Commitment Papers delivered Letter. Subject to the Company on or prior to the date hereof. As terms and conditions of the date hereofDebt Commitment Letter, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of net proceeds contemplated from the Committed Financing, together with other cash of Buyer on the part of Parent orClosing Date, to the Knowledge of Parent, any other party thereto under the Financing Commitmentwill, in each casethe aggregate, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to be sufficient for the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy all of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other Buyer’s obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Regal Beloit Corp), Asset and Stock Purchase Agreement (Regal Beloit Corp)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy of (i) the a fully executed commitment letter, letter dated March 26, 2018, among Parent on or about the date of this Agreement (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentCommitment Letter”) from Gurnet Point L.P. (the “Sponsor”), pursuant to which the lenders party thereto have committedproviding for an equity investment in Parent, subject to the terms and conditions therein, to lend in cash in the amounts aggregate amount set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement Agreement, the Commitment Letter is in full force and effect and has not been amended or modified, and no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Financing Commitment such letters have not been withdrawn withdrawn, terminated or rescinded in any respectrespect and no such withdrawal, termination or rescission is contemplated. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof hereof, there are no side letters or other agreements, Contracts or any other arrangements (whether written or understandings oral) to which Parent or any of its Affiliates is a party related to the funding or investing, as applicable, of the Committed full amount of the Financing. Assuming (i) the Financing or is funded in accordance with the transactions Commitment Letter and (ii) the satisfaction of the Offer Conditions, the net proceeds contemplated hereby other than as expressly set forth by the Commitment Letter will, in the Financing Commitment Papers delivered to aggregate be sufficient for Merger Sub and the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue Surviving Corporation to pay in full any such the Merger Consideration, the amounts required to be paid as pursuant to Section 2.08 and when they become due any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related Expenses payable on or prior to the Charter Closing Date and as by them in connection with the Transactions (such amount collectively, the “Aggregate Commitment”). As of the date hereofof this Agreement, each of the Financing Commitment Papers Letter is in full force and effect and is the (x) legal, valid, valid and binding and enforceable obligations of Parent or its applicable Affiliate party theretoand Merger Sub, as applicable, and and, to the Knowledge knowledge of Parent, each of the other parties thereto, (y) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and each of the other parties thereto, in each case except that (x) as such enforceability may be subject to the Enforceability Limitations limited by bankruptcy, insolvency, fraudulent transfer, moratorium and other similar Applicable Law affecting creditors’ rights generally and by general principles of equity and (yz) the remedy of specific performance in full force and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughteffect. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge of Parent, or Merger Sub or any other party parties thereto under the Financing Commitment, in each case, under the terms Commitment Letter. As of the Committed Financingdate of this Agreement, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) subject to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties of the Company set forth in Article IIIIVI, (ii) and the performance by the Company and its Subsidiaries satisfaction of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereofOffer Conditions, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on or Merger Sub at the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsEffective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gurnet Holding Co), Agreement and Plan of Merger (Corium International, Inc.)
Financing. Parent has made available At the Closing, subject to the Company a trueterms and conditions of the Financing Commitments and subject to the satisfaction of the conditions contained in Sections 6.1 and 6.3, complete assuming the accuracy of the Seller’s representations and correct copy warranties set forth in Article III and assuming compliance by the Seller with the covenants set forth herein, the Buyer will have on the Closing Date sufficient available funds to pay the consideration specified in Section 2.5 and to make all other necessary payments by it in connection with the transactions contemplated by this Agreement. Concurrently with the execution and delivery of this Agreement, the Buyer has received and accepted (i) an executed equity commitment letter, dated as of the date of this Agreement, from RoundTable Healthcare Partners IV, L.P. and RoundTable Healthcare Investors IV, L.P. (“RoundTable”), pursuant to which RoundTable has agreed, subject to the terms and conditions thereof, to provide equity financing in an aggregate amount set forth therein (as amended, restated, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.21, the “Equity Financing Commitment”), (ii) an executed commitment letter, dated March 26as of the date of this Agreement (as amended, 2018restated, among Parent (modified, supplemented, replaced or its applicable Affiliate) and extended from time to time after the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelydate of this Agreement in compliance with Section 5.21, the “Senior Debt Financing CommitmentCommitments”), from Capital One, National Association and CIBC Bank USA (collectively with any other additional lead arrangers, bookrunners, managers, arrangers, agents, co-agents or lenders who become party to the Senior Debt Financing Commitments, the “Senior Lenders”), pursuant to which the lenders party thereto Senior Lenders have committedagreed, subject to the terms and conditions thereinthereof, to lend provide the debt amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (iiiii) the an executed fee letter associated therewith; providedcommitment letter, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and dated as of the date of this Agreement (as amended, restated, modified, supplemented, replaced or extended from time to time after the respective commitments contained date of this Agreement in compliance with Section 5.21, together with the Senior Debt Financing Commitment Commitments, the “Debt Financing Commitments” and together with the Equity Financing Commitment, the “Financing Commitments”), from RoundTable Healthcare Capital Partners III, L.P. (the “Subordinated Lender”), pursuant to which the Subordinated Lender have not been withdrawn or rescinded in any respectagreed, subject to the terms and conditions thereof, to provide the debt amounts set forth therein. Except for The Buyer has delivered to the Fee Letter Seller true, complete and correct copies of the executed Financing Commitments and copies of the fee letters related to the Senior Debt Financing Commitments (with only fee amounts and amounts, pricing caps, market flex provisions and other customary threshold amounts economic terms redacted; provided). As used in this Agreement, “Debt Financing Source” means any entity that has committed to provide or otherwise entered into agreements with the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it Buyer in connection with the Debt Financing, Alternative Financing Commitment that are payable on or prior other financings in connection with the transactions contemplated by this Agreement, including the parties to the date hereof, Parent will, directly Debt Financing Commitments and any joinder agreements or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party credit agreements related thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy of (i) the an executed commitment letterletter dated as of April 29, dated March 262012 from Xxxxxxx Xxxxx Bank USA and Xxxxxxx Sachs Lending Partners LLC (together, 2018“GS”), among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules schedules, annexes and annexes thereto, collectively, the “Financing Commitment”), pursuant amendments to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee such letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and in effect as of the date of this Agreement (the respective commitments contained “Debt Commitment Letter”), pursuant to which and subject to the terms and conditions thereof GS has agreed and committed to provide the financing described therein (the “Debt Commitment” and the funding in full of the Financing net proceeds of the Debt Commitment have not been withdrawn in accordance with the terms and conditions set forth therein, together with the issuance by Parent or rescinded one of its Subsidiaries of senior notes as contemplated by the Debt Commitment Letter, the “Debt Financing”). Parent has also delivered to the Company true, correct and complete copy of any fee letter in any respect. Except for connection with the Fee Debt Commitment Letter (with only it being understood that any such fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect letter provided to the availability of Company may be redacted to omit the Committed Financing or numerical amounts provided therein) (any reduction in the amount of the Committed Financingsuch fee letter, a “Fee Letter”), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as . As of the date hereof there are no side letters or Contracts or of this Agreement, the Debt Commitment Letter in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent (subject to the Bankruptcy and Equity Exception) and, to the knowledge of Parent and Merger Sub, GS and any other arrangements or understandings to which Parent lender that is a party to the Debt Commitment Letter. There are no conditions precedent or other contingencies related to the funding or investing, as applicable, obligations of GS (and any other lender that is a party to the Committed Financing or Debt Commitment Letter) to fund in full the transactions Debt Commitment contemplated hereby by the Debt Commitment Letter other than as expressly set forth in the Financing Debt Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtLetter. As of the date hereof, there are no conditions precedent related other agreements, side letters or arrangements to which Parent or Merger Sub is a party relating to the funding of the full amount of the Committed Financing, Debt Financing other than as expressly set forth in the Financing Debt Commitment Papers delivered to the Company on or prior to the date hereofLetter and any Fee Letter. As of the date hereof, (i) the Debt Commitment Letter has not been modified or amended, (ii) no event has occurred or circumstance exists which, with or without notice, lapse of time time, or both, would or would reasonably be expected to constitute a default or breach, breach by Parent or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent Merger Sub or, to the Knowledge knowledge of Parent, any of the other party thereto under the Financing Commitment, in each caseparties thereto, under the terms any term or condition of the Committed FinancingDebt Commitment Letter and (iii) the commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded. As of the date hereof, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) subject to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants conditions contained in this Agreement Section 8.1 and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date Section 8.2 hereof, Parent has and Merger Sub (x) do not have actual knowledge of any facts or occurrences that make any of the material assumptions in the Debt Commitment Letter inaccurate, (y) have no reason to believe that they will be unable to satisfy on a timely basis any condition of the conditions closing to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on by them contained in the Charter Closing Date or Debt Commitment Letter and (z) have no reason to believe that the Committed Financing Debt Commitment will not be made available to Parent on as of the Charter Closing DateEffective Time. Parent affirms that it is not a condition Subject to the Charter Closingterms and conditions of the Debt Commitment Letter and assuming the accuracy in all material respects of the Company’s representations and warranties in Article IV of this Agreement, the Merger Closing net proceeds contemplated from the Debt Financing (if made available to Parent), together with Parent’s available, unrestricted cash on hand, cash equivalents and marketable securities, will, in the aggregate, be sufficient for the payment of the aggregate consideration payable pursuant to Article III hereof and the Pre-Closing Dividend or any satisfaction of its other all of Parent’s obligations under this Agreement that Parent obtain and of all fees and expenses reasonably expected to be incurred in connection herewith (the Committed Financing or any other financing for or related to any “Required Amounts”). As of the Transactionsdate hereof, Parent and Merger Sub have fully paid, or caused to be fully paid, all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Debt Commitment Letter and any Fee Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hologic Inc), Agreement and Plan of Merger (Gen Probe Inc)
Financing. (a) The Parent has made available Entities have delivered to the Company a Entities true, complete and correct copy copies of the fully executed (i) the executed equity commitment letter dated April 2, 2024 from Silver Lake Partners VI, L.P., Silver Lake Partners VII, L.P. and SL SPV-4, L.P. (each an “Equity Investor”, and such letter, the “Equity Commitment Letter”), pursuant to which the Equity Investors have agreed, upon the terms and subject only to the express conditions thereof, to contribute or invest in the Parent Entities the respective amounts set forth therein (collectively, the “Equity Financing”) and (ii) commitment letter dated March 26April 2, 20182024 from the Debt Financing Sources party thereto pursuant to which such Debt Financing Sources have committed, among upon the terms and subject only to the express conditions thereof, to provide to the Parent Entities or the Merger Subs (or its applicable Affiliatesuch other entities as directed by the Parent Entities pursuant to the Restructuring Steps) and debt financing constituting Credit Facilities (as defined in the financial institutions party Debt Commitment Letter as of the date hereof) in the aggregate principal amounts set forth therein for the purpose of funding a portion of the Required Amount (the “Debt Financing”, which shall include, for the avoidance of doubt, any replacement financing, together with any fee letters related thereto (including all exhibits, schedules and annexes thereto, and the executed fee letters associated therewith (redacted in the manner set forth below)), collectively, the “Financing CommitmentDebt Commitment Letter”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing CommitmentEquity Commitment Letter, the “Commitment Letters”) and (iii) to the extent required pursuant to the terms of this Agreement following a Financing Failure Event, a commitment letter (including all exhibits, schedules and annexes thereto, and the executed fee letters associated therewith (redacted in the manner set forth below)) pursuant to which the parties thereto have committed, upon the terms and subject only to the express conditions set forth therein, to provide to the Parent Entities or the Merger Subs (or such other entities as directed by the Parent Entities pursuant to the Restructuring Steps, if applicable) the Debt Financing (and which, for the avoidance of doubt, shall be considered as a “Debt Commitment Papers”Letter” and a “Commitment Letter” hereunder). The Financing Equity Commitment Papers have not been amended or modified prior Letter expressly provides that the Company is a third-party beneficiary thereof to the date of this Agreement extent provided therein, and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior is entitled to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent willenforce, directly or indirectly, continue to pay the Equity Commitment Letter in full any such amounts required to be paid as and when they become due and payable on or prior accordance with its terms against the applicable Equity Investors. The Debt Financing pursuant to the Charter Closing Date Debt Commitment Letter and as of the date hereof, each of the Equity Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and pursuant to the Knowledge of Parent, each of Equity Commitment Letter are collectively referred to in this Agreement as the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed “Financing, other than as expressly set forth in the Financing Commitment Papers .” The fee letters delivered to the Company on or prior pursuant hereto shall be accurate and complete copies (subject only to the date hereof. As customary redactions of the date hereoffee amounts, no event has occurred whichpricing caps and “market flex” related solely to economic terms, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, and in each case, under which redacted information does not relate to or impact conditionality, enforceability or the terms of the Committed Financing, other than any such default, breach amount or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsDebt Financing).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Emanuel Ariel), Agreement and Plan of Merger (Endeavor Group Holdings, Inc.)
Financing. (a) Parent has made available delivered to the Company a true, complete and correct copy copies of (i) the executed debt commitment letter, dated March 26as of the Execution Date, 2018between Parent, among Parent Merger Sub and Barclays Bank PLC and Royal Bank of Canada and the executed fee letter associated therewith (provided that provisions in the fee letter related to fees, pricing and “flex” provisions as well as other thresholds, caps or its applicable Affiliateother items but only to the extent not affecting conditionality, may be redacted (such commitment letter, together with all exhibits, schedules, annexes, supplements and amendments thereto (including as modified to add additional lenders or other parties thereto) and the financial institutions party thereto (including all exhibits, schedules and annexes theretofee letter, collectively, the “Debt Financing Commitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms and conditions set forth therein, Barclays Bank PLC and Royal Bank of Canada have agreed to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes of, among other things, purpose of funding the Transactions and related fees and expenses and (ii) transactions contemplated by this Agreement. As of the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedExecution Date, the “Fee Letter” Debt Financing Commitment has not been amended, restated or otherwise modified or waived and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement Execution Date, the respective commitments contained in the Debt Financing Commitment have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability As of the Committed Financing or any reduction in the amount of the Committed Financing)Execution Date, certain “back-to-back” letters between Financing Sources there are, and customary engagement letters with respect are contemplated to the Committed Financing (none of which adversely affectbe, or impose additional conditions uponno other agreements, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings relating to the Debt Financing Commitment to which Parent is or Merger Sub are a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby (other than (a) as expressly set forth in the Debt Financing Commitment Papers delivered furnished to the Company on pursuant to this Section 5.7(a) or prior to (b) which does not impact the date hereofconditionality or aggregate amount of the Debt Financing). Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with As of the Execution Date, the Debt Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is constitutes the legal, valid, valid and binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of Parent and Merger Sub and, to Parent’s knowledge, the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of Lender’s obligation to fund the full amount of the Committed Debt Financing, other than as expressly set forth in the Debt Financing Commitment Papers delivered to the Company on or prior to the date hereofCommitment. As of the date hereofExecution Date, no event has occurred whichassuming performance by the Company, with or without notice, lapse the Principal Stockholders and the Stockholders’ Representatives of time or both, would constitute a default or breach, or failure their obligations that are required to satisfy a condition precedent be performed prior to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) Closing and the accuracy of the representations and warranties set forth in Article III4, and Article 5, (iia) the performance aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Company Debt Financing Commitment, together with Parent and its Subsidiaries of Merger Sub’s available cash on hand, cash equivalents and marketable securities, will be sufficient on the covenants contained Closing Date for Parent and Merger Sub to pay the Closing Cash Consideration and fund the Escrow Fund, and all related fees and expenses and any other payment contemplated in this Agreement and (iiib) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as each of the date hereof, Parent has no and Merger Sub does not have any reason to believe that any of the conditions to the availability of the Committed Debt Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Debt Financing will not be made available to Parent and Merger Sub on the Charter Closing Date. As of the Execution Date, no event has occurred that would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Parent affirms or Merger Sub under the Debt Financing Commitment; provided that it Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties set forth in Article 4, and Article 5 or compliance by the Company or the Stockholders (and their respective Affiliates) with their respective obligations hereunder. Parent has paid all commitment fees or other fees required to be paid on or prior to the Execution Date pursuant to the Debt Financing Commitment. The obligations of Parent and Merger Sub hereunder are not subject to any conditions regarding the ability of Parent and Merger Sub to obtain financing for the consummation of the transactions contemplated hereby. Parent acknowledges that obtaining financing is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GXS Worldwide, Inc.), Agreement and Plan of Merger (Open Text Corp)
Financing. (a) Parent has made available delivered to the Company a true, complete and correct copy copies of (i) the executed commitment letterletters, dated March 26, 2018as of the date hereof, among Parent Parent, Merger Subsidiary and certain lender parties (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing CommitmentCommitments”), pursuant to which the lenders party lender parties thereto have committed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the amounts debt financing set forth therein (including, if applicable, any debt replacement, amended financing or supplement obtained in accordance with Section 6.05, the “Debt Financing”) and (b) an executed equity commitment letter, dated as of the date hereof, by and between Irving Place Capital Partners III, L.P. (the “Equity Commitment Party”), and Parent (the “Equity Financing Commitment,” and together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which the Equity Commitment Party has committed, subject to the terms and conditions thereof, to invest an amount as set forth therein (the “Committed Equity Financing”) for ,” and together with the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedDebt Financing, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment PapersFinancing”). The As of the date of this Agreement, the Financing Commitment Papers have not Commitments are in full force and effect and are legal, valid and binding and enforceable obligations of Parent and Merger Subsidiary, as the case may be, and to the knowledge of Parent, each of the other parties thereto. None of the Financing Commitments has been amended or modified prior to since the date of this Agreement in any respect, no such amendment or modification is contemplated by Parent or Merger Subsidiary (or to the knowledge of Parent and Merger Subsidiary, by the other parties thereto), and as of the date of this Agreement hereof, the respective commitments contained in the Financing Commitment Commitments have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofrescinded. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Commitments that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered Commitments, and except for the fee letter and engagement letter dated the date hereof (complete copies of which have been provided to the Company on Company, with only fee amounts and economic terms (none of which would adversely effect the amount or prior availability of financing) redacted), there are no side letters or other Contracts relating to the date hereoffunding or investing of the Financing, other than as set forth in or otherwise permitted by the terms of the Financing Commitments that would permit the lenders under the Debt Financing Commitments or the Equity Commitment Party to reduce the total amount of financing or that would materially affect the availability of the Financing. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Subsidiary or, to the Knowledge knowledge of Parent, any other party thereto under any of the Financing Commitment, in each case, under the terms Commitments. As of the Committed Financingdate hereof, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) assuming the accuracy of the representations and warranties set forth in Article III, (ii) the performance by of the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the satisfaction of the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereofSection 9.01 and Section 9.02, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it Commitments will not be satisfied on satisfied. The aggregate proceeds contemplated by the Charter Financing Commitments will at the Closing Date or that be sufficient to (i) pay the Committed Financing will not aggregate Merger Consideration and (ii) pay any and all fees and expenses required to be made available to Parent on paid by Parent, Merger Subsidiary and the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, Surviving Corporation in connection with the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsFinancing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Razor Holdco Inc.), Agreement and Plan of Merger (Thermadyne Holdings Corp /De)
Financing. Parent has made available delivered to the Company a true, complete and correct fully executed copy of (i) the executed commitment letter, dated March 26as of July 15, 20182014, among Parent (or its applicable Affiliate) between Parent, Bank of America, N.A. and the financial institutions party thereto (Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, including all exhibits, schedules schedules, annexes, attachments and annexes thereto, collectively, the “Financing Commitment”), pursuant amendments to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee such letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and in effect as of the date of this Agreement and a fully executed copy of the fee letter referenced therein (provided that the provisions in any such fee letter related solely to fees and the economic terms of the “market flex” sections thereof agreed to by the parties may be redacted (none of which redacted provisions relate to, or shall adversely affect, the availability or conditionality (either by imposing new or additional conditions or modifying any existing conditions) of the Financing at the Closing) (such commitment letter and related term sheets, together with all exhibits, annexes, schedules, amendments and attachments thereto, as amended or otherwise modified only to the extent permitted by this Agreement, collectively, the “Commitment Letter”). Pursuant to, and subject to the terms and conditions of, the Commitment Letter, the lenders thereunder have committed to provide to Parent the aggregate principal amounts set forth therein (the provision of such funds as set forth therein, the “Financing”) for the purposes set forth in such Commitment Letter. The Commitment Letter has not been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, and the respective commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, rescinded, terminated, amended, restated or rescinded otherwise modified in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect prior to the availability execution and delivery of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there this Agreement. There are no side letters or other Contracts or any other arrangements or understandings to which Parent Parent, Merger Sub or any of their Affiliates is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in full amount of the Financing Commitment Papers delivered (except for the fee letter referenced above and any engagement letters or fee discount letters related to the Company Financing, which will not have an adverse impact on the funding of the full amount of the Financing pursuant to the Commitment Letter at or prior to the date hereofClosing on the terms and conditions set forth in this Agreement and such Commitment Letter). Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as As of the date hereofexecution and delivery of this Agreement, each of the Financing Commitment Papers Letter is in full force and effect and is constitutes the legal, validvalid and binding obligation of Parent, binding and enforceable obligations and, to the Knowledge of Parent or its applicable Affiliate party Parent, the other parties thereto, as applicableenforceable in accordance with its terms against Parent and, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations as limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and (y) the remedy by general principles of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity. As of the date hereof, there There are no conditions precedent (including pursuant to any “flex” provisions) related to the funding of the full amount of the Committed FinancingFinancing pursuant to the Commitment Letter, other than as expressly set forth in the Commitment Letter. Assuming the Financing is funded in accordance with the Commitment Papers delivered to Letter, and together with cash on hand at Parent, the Company on and their respective Subsidiaries, Parent and Merger Sub will have at and after the Closing funds sufficient for the payment of the aggregate cash portion of the Merger Consideration and any other amounts required to be paid pursuant to Article II hereof, the funding of any required refinancings or prior repayments of any existing Indebtedness of the Company or Parent or any of their respective Subsidiaries in connection with the Merger and the payment of all fees and expenses required to be paid by Parent, Merger Sub and the date hereofSurviving Corporation in connection with this Agreement and the Financing (the “Required Amount”). As of the date hereofexecution and delivery of this Agreement, (i) no event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would constitute a default default) or breach, or result in a failure to satisfy a condition precedent to the availability of the Committed Financingprecedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other party thereto under to the Financing Commitment, in each caseCommitment Letter, under the terms of the Committed FinancingCommitment Letter, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Each of Parent affirms that it is not a condition and Merger Sub, as applicable, has fully paid, or caused to be fully paid, any and all commitment fees or other fees to the Charter Closing, extent required to be paid on or prior to the Merger Closing and the Pre-Closing Dividend or any date of its other obligations under this Agreement that Parent obtain in connection with the Committed Financing or any other financing for or related to any of the TransactionsFinancing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Albemarle Corp), Agreement and Plan of Merger (Rockwood Holdings, Inc.)
Financing. As of the Second Amendment Date, Parent has made available delivered to the Company a true, complete and correct copy copies of (i) the fully executed commitment letter (such letter, dated March 26as amended, 2018modified or waived from time to time to the extent permitted herein, among Parent (or its applicable Affiliate) and any financing commitment in respect of an Alternative Financing as contemplated by the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelylast sentence of Section 5.18(b), the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed FinancingCommitment Letter”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it executed in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as debt financing of a portion of the date hereof, each cash component of the Financing Merger Consideration (the “Financing”) (with certain fee amounts and certain economic terms of the “market flex” provisions redacted). As of the Second Amendment Date, the Commitment Papers Letter is in full force and effect and is constitutes the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge knowledge of Parent, each of the other parties thereto, except that thereto (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other forms laws affecting creditors’ rights generally and general principles of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity). As of the date hereofSecond Amendment Date, there the Commitment Letter has not been amended or modified in any respect and the respective commitments therein have not been withdrawn or terminated. There are no conditions precedent or, to the knowledge of Parent, other contingencies related to the funding of the full amount of the Committed Financing, Financing on the terms set forth in the Commitment Letter (as such terms may be altered in accordance with the “market flex” provisions set forth in the Fee Letter) other than as expressly set forth as of the Second Amendment Date in the Financing Commitment Papers delivered to the Company on or prior to the date hereofLetter. As of the date hereofSecond Amendment Date, no event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default breach by Parent or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under Commitment Letter. Subject to the terms and conditions of the Committed FinancingCommitment Letter, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction as of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article IIISecond Amendment Date, (ii) the performance assuming compliance by the Company and in all material respects with its Subsidiaries of the covenants contained in this Agreement Section 5.1 and (iiiSection 5.18(d) and assuming satisfaction of the conditions set forth in Article VII are satisfied at Section 6.1 and Section 6.3, the Charter Closing aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letter, together with other financial resources of Parent, including cash on hand and marketable securities, will, in the aggregate, be sufficient to fund the payment of the cash component of the Merger Consideration. As of the Second Amendment Date, as assuming satisfaction of the date hereofconditions set forth in Section 6.3, Parent has no reason to believe that either it or any other party will be unable to satisfy on a timely basis any condition of the conditions to Financing under the availability of Commitment Letter or the Committed Fee Letter or that the Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing Letter will not be made available to Parent on the Charter Closing Date. ; provided that Parent affirms that it is not a condition to making any representation or warranty regarding the Charter ClosingCompany’s future performance, the Merger Closing effect of any inaccuracy of the representations and warranties of the Pre-Closing Dividend Company in this Agreement or the failure of the Company to comply with any of its other obligations covenants in all material respects under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Southern Union Co), Agreement and Plan of Merger (Energy Transfer Equity, L.P.)
Financing. Parent has made available delivered to the Company a true, complete and correct copy of (i) the two executed commitment letterletters, each dated March 26as of November 21, 20182011, among Parent and Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Barclays Bank PLC (together, the “Lead Commitment Parties” and, together with any person who executes a joinder to such commitment letters or its applicable Affiliate) who otherwise commits to provide any portion of the Financing (as defined below), “Commitment Parties” and, together with their respective shareholders, partners, members, affiliates, directors, officers, employees and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelyagents, the “Financing CommitmentSources”), which are attached hereto as Annex D (the “Financing Commitments”), pursuant to which the lenders party thereto severally have committed, on the terms and subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of financing the Transactions (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers Commitments have not been amended or modified prior to the date of this Agreement and hereof, and, as of the date of this Agreement hereof, the respective commitments contained in the Financing Commitment Commitments have not been withdrawn or rescinded in any respect. Except for a fee letter and an agency fee letter relating to fees and related arrangements with respect to the Fee Letter Financing (true, complete and correct copies of which has been provided to the Company, with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that certain economic terms of the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financingredacted), as of the date hereof there are no side letters or other Contracts or any other arrangements altering the terms or understandings to which Parent is a party related to conditions of the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers Commitments delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Commitments that are due and payable on or prior to the date hereof, Parent willand, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is Commitments are in full force and effect and is are the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party theretoand Merger Sub, as applicablethe case may be, and in each case subject to the Knowledge Bankruptcy and Equity Exception and any legal limitations on the enforceability of provisions requiring indemnification against liabilities under securities laws in connection with any offering, sale or issuance of securities, and, to the knowledge of the executive officers of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered Commitments. Assuming the accuracy of the representations and warranties set forth in Section 4.1 in all material respects (except to the extent already qualified as to Company on or prior to the date hereof. As Material Adverse Effect), as of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, has constituted or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability breach under any of the Committed Financing, on the part of Financing Commitments by Parent or Merger Sub or, to the Knowledge knowledge of the executive officers of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sourcesthereto. Assuming (i) the accuracy of the representations and warranties set forth in Article III, Section 4.1 in all material respects (iiexcept to the extent already qualified as to Company Material Adverse Effect) the performance and assuming compliance by the Company and with its Subsidiaries of the covenants contained obligations herein in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereofall material respects, Parent has no reason and Merger Sub will have available to believe that any of the conditions them at and immediately prior to the availability of Acceptance Time cash in an aggregate amount sufficient to pay the Committed Financing contemplated by aggregate Offer Price, assuming all issued and outstanding Shares are tendered in the Financing Commitment applicable to it will Offer and not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Datewithdrawn. Parent affirms that it is not a condition and Merger Sub will have available at and immediately prior to the Charter ClosingEffective Time cash in an aggregate amount sufficient to pay the Per Share Merger Consideration. Parent and Merger Sub will have at and after the Closing funds sufficient to pay any and all fees and expenses required to be paid by Parent, the Merger Closing Sub and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain Surviving Corporation in connection with the Committed Financing or any other financing for or related to any of Transactions and the TransactionsFinancing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gilead Sciences Inc), Agreement and Plan of Merger (Pharmasset Inc)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copies, as of the date of this Agreement, of (ia) the an executed commitment letter, dated March 26, 2018, among Parent letter (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentEquity Commitment Letter”)) from Genstar Capital Partners V, pursuant L.P. and Genstar Capital Partners VI, L.P. to which the lenders party thereto have committedprovide, subject to the terms and conditions therein, to lend cash in the amounts aggregate amount set forth therein (the “Committed Equity Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (iib) an executed debt financing commitment letter from Credit Suisse Securities (USA) LLC (including any other Person that becomes party to such letter after the executed date hereof, the “Commitment Parties”) and the fee letter letters associated therewith; provided, such fee letter may be redacted as described below therewith (as so redacted, the “Fee Letter” and, together with the Financing Commitmentdebt financing commitment letter, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”) (provided, that provisions in the Fee Letter related solely to fees, economic terms (other than covenants) and “flex” provisions may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing Commitment Papersat the Closing)) to provide, subject to the terms and conditions therein, debt financing in the amounts set forth therein (the “Debt Financing”, and, together with the Equity Financing, collectively referred to as the “Financing”). The Financing As of the date hereof, none of the Commitment Papers Letters have not been amended or modified prior and no such amendment or modification is contemplated or pending (other than amendments or modifications to the date of this Agreement Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents and as similar entities). As of the date of this Agreement hereof, the respective commitments contained in the Financing Commitment Letters have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts , and market flex provisions and other customary threshold amounts redacted; providedno such withdrawal, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (termination or the modification rescission is contemplated by Parent or expansion of any existing conditions) with respect Merger Sub or, to the availability knowledge of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions uponParent, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there other parties thereto. There are no side letters or Contracts other Contractual Obligations or any other arrangements or understandings to which Parent is a party related to that could affect the funding or investing, as applicable, availability of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered Letters furnished to the Company on or prior pursuant to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofthis Section 5.11. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Sub or or any of their respective Affiliates or, to the Knowledge knowledge of Parent, any other party thereto under the Financing CommitmentPerson, in each casecase under either of the Commitment Letters. The Commitment Letters are not subject to any conditions (including pursuant to any flex provisions in the Fee Letter or otherwise) other than as set forth expressly therein and are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent, Merger Sub and, to the knowledge of Parent, each of the other parties thereto, as the case may be, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity). All commitments and other fees required to be paid under the terms Commitment Letters prior to the date hereof have been paid in full, and as of the Committed Financing, other than date hereof Parent is unaware of any such default, breach fact or failure occurrence existing on the date hereof that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) would reasonably be expected to the satisfaction make any of the applicable Financing Sources. Assuming (i) the accuracy assumptions or any of the representations and warranties statements set forth in Article III, (ii) the performance by Commitment Letters inaccurate or that would reasonably be expected to cause the Company and its Subsidiaries Commitment Letters to be ineffective. As of the covenants contained in this Agreement and (iii) date hereof, assuming the conditions set forth in Article VII Sections 7.1 and 7.3 are satisfied at the Charter Closing Date, as of the date hereofClosing, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed full amount of the Financing will not be made available in full to Holdings, Parent and Merger Sub on the Charter Closing Date. Parent affirms that it is not a condition to Assuming satisfaction of the Charter Closingconditions set forth in Sections 7.1 and 7.3 and the funding of the Debt Financing in accordance with the Debt Commitment Letter, the aggregate proceeds contemplated by the Commitment Letters when funded, together with cash and cash equivalents available to Parent, Merger Sub and the Surviving Corporation, will be sufficient for Merger Sub to pay the aggregate Cash Merger Consideration to be paid at the Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related amounts required to any be paid by Holdings, Parent and Merger Sub at the Closing in connection with the consummation of the Transactionstransactions contemplated hereby and to pay all related fees and expenses of Holdings, Parent and Merger Sub required to be paid at the Closing in connection therewith.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Symmetry Surgical Inc.), Agreement and Plan of Merger (Symmetry Medical Inc.)
Financing. Parent Investor has made available delivered to the Company a true, complete and correct copy of copies of: (i) the executed commitment letter, dated March 26as of the date hereof by and among UBS Loan Finance LLC, 2018UBS Securities LLC, among Parent Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Credit Suisse AG, Credit Suisse Securities (or its applicable AffiliateUSA) LLC and the financial institutions party thereto Investor (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing Commitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms and conditions set forth therein, UBS Loan Finance LLC, UBS Securities LLC, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Credit Suisse AG, Credit Suisse Securities (USA) LLC have agreed to lend the amounts set forth therein to the Company for the purpose of funding the transactions contemplated by this Agreement (the “Committed Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and ); (ii) the executed fee letter associated therewith; providedequity commitment letter, such fee letter may be redacted dated as described below of the date hereof among Investor and Xxxxxxx, Dubilier & Rice Fund VIII, L.P. (as so redacted, the “Fee LetterEquity Financing Commitment” and, and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, Xxxxxxx, Dubilier & Rice Fund VIII, L.P., has committed to invest the cash amount in Investor set forth in its Equity Financing Commitment Papers(the “Equity Financing” and together with the Debt Financing, the “Financing”); (iii) any and all fee letters in connection with the Debt Financing Commitment (collectively, the “Fee Letter”); and (iv) the engagement letter(s) in connection with any offerings of high-yield bonds (the “Engagement Letter”). The None of the Financing Commitment Papers have not Commitments, the Fee Letter or the Engagement Letter has been amended or modified prior to the date of this Agreement and (provided that the existence or exercise of the “flex” provisions contained in the Fee Letter shall not constitute an amendment or modification of the Financing Commitments), and, as of the date of this Agreement hereof, the respective commitments contained in the Financing Commitment Commitments have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and There are no other customary threshold amounts redacted; providedagreements, that the market flex provisions in such Fee Letter may not permit the imposition of side letters or arrangements to which Investor is a party relating to any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as Commitments. As of the date hereof there hereof, the Financing Commitments are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related in full force and effect and constitute the legal, valid and binding obligations of Investor and, to the funding knowledge of Investor, the other parties thereto (subject in each case to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or investingsimilar Laws relating to or affecting creditors rights generally and by general equity principles, as applicable, of the Committed Financing whether considered in Proceedings in equity or the transactions contemplated hereby other at law). Other than as expressly set forth in the Financing Commitment Papers delivered to the Company on Commitments, and any related Fee Letter or prior to Engagement Letter or as set forth in any such documents amended after the date hereof. Parent has fully paid any hereof and all commitment fees or other fees required to be paid by it not in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as violation of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date provisions hereof, there are no conditions precedent related to the funding of the full amount net proceeds of the Committed Financing, other than as expressly set forth in Financing (including any “flex” provisions) under any agreement relating to the Financing Commitment Papers delivered to the Company on which Investor or prior to the date hereofany of its Affiliates is a party. As of the date hereof, no event has occurred which, which would constitute a breach or default (or with notice or without notice, lapse of time or both, both would constitute a default or breachdefault) by Investor under the Financing Commitments, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge knowledge of ParentInvestor, any the other party thereto under parties to the Financing Commitment, in each case, under the terms of the Committed Financing, Commitments. Investor has fully paid or caused to be fully paid all commitment fees or other than any such default, breach fees required to be paid on or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) prior to the satisfaction of date hereof pursuant to the applicable Financing SourcesCommitments. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the ARTICLE II and performance by Seller and the Company and its Subsidiaries of their respective obligations hereunder, upon receipt of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing proceeds contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter ClosingCommitments, the Merger Closing Investor and the Pre-Company will have access as of the Closing Dividend or any of its other obligations under to sufficient cash funds to pay all amounts contemplated by this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsbe paid by them and to perform their respective obligations hereunder.
Appears in 2 contracts
Samples: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Financing. Parent Purchaser has made available delivered to the Company Seller a true, true and complete and correct copy of (ia) the a fully executed commitment letterletter from Banc of America Securities LLC, dated March 26Banc of America Bridge LLC, 2018Bank of America, among Parent N.A., JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities Inc. (or its applicable Affiliatethe "Lenders") and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto whereby such Lenders have committed, subject to upon the terms and conditions set forth therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained provide senior debt financing in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the an amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it $700,000,000 in connection with the Contemplated Transactions (the "BofA Financing Commitment that are payable Commitment"), and (b) a fully executed commitment letter from Onex Partners L.P. whereby Onex Partners L.P. has committed (the "Onex Equity Commitment"), on or prior the terms and subject to the date hereofconditions set forth therein, Parent will, directly or indirectly, continue to pay provide equity financing in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as aggregate amount of $215,000,000 in connection with the Contemplated Transactions. As of the date hereof, each of the BofA Financing Commitment Papers and the Onex Equity Commitment has not been amended or modified and is in full force and effect and effect. Purchaser is the legal, valid, binding and enforceable obligations not aware of Parent or its applicable Affiliate party thereto, as applicable, and any fact which would cause it to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming believe (i) that the accuracy of the representations and warranties set forth in Article III, (ii) the performance debt financing contemplated by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) BofA Financing Commitment will not be available to Purchaser as contemplated therein, subject to the conditions set forth in Article VII are satisfied at such BofA Financing Commitment; or (ii) that the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing equity financing contemplated by the Financing Onex Equity Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition consummated as contemplated therein, subject to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed conditions set forth in such Onex Financing or any other financing for or related to any of the TransactionsCommitment.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Emergency Medical Services CORP), Stock Purchase Agreement (Emergency Medical Services CORP)
Financing. Ultimate Parent has made available shall take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Company a true, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to on the terms and conditions thereindescribed in the Debt Commitment Letter and to consummate the Debt Financing on the Closing Date. Such actions shall include, to lend but not be limited to, the amounts set forth therein following: (i) maintaining in effect the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and Debt Commitment Letter; (ii) participation by senior management of Ultimate Parent in, and assistance with, the executed fee letter associated therewithpreparation of rating agency presentations and meetings with rating agencies; provided(iii) satisfying on a timely basis all Financing Conditions applicable to Ultimate Parent in the Debt Commitment Letter that are within its control; (iv) negotiating, executing and delivering Debt Financing Documents that reflect the terms contained in the Debt Commitment Letter (to the extent required to consummate the transactions contemplated hereunder) (including any “market flex” provisions related thereto) or on such fee letter may other terms acceptable to Ultimate Parent and its financings sources; and (v) in the event that the conditions set forth in Section 6.1 and Section 6.2 and the Financing Conditions have been satisfied or, upon funding, would be redacted as described below satisfied, cause the financing providers to fund the full amount of the Debt Financing to the extent the proceeds thereof are needed to fund transactions contemplated hereunder. Ultimate Parent shall give the Company reasonably prompt notice of any breach, repudiation or threatened (in writing) breach or repudiation by any party to the Debt Commitment Letter of which Ultimate Parent or its Affiliates becomes aware. Without limiting Ultimate Parent’s other obligations under this Section 5.15, if a Financing Failure Event occurs, Ultimate Parent shall (A) promptly notify the Company of such Financing Failure Event and the reasons therefor, (B) use commercially reasonable efforts to obtain alternative financing from alternative financing sources (on terms not materially less favorable to Ultimate Parent (as so redacteddetermined in the reasonable judgment of Ultimate Parent, taking into account any “market flex” provisions related to the “Fee Debt Commitment Letter” and) than those contained in the Debt Commitment Letter), in an amount sufficient, together with other financial resources of Ultimate Parent, Parent and Merger Sub, to pay the Financing Commitmentaggregate Merger Consideration, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior Option Payments and RSU Payments pursuant to the date of this Agreement and consummate the transactions contemplated by this Agreement, as promptly as practicable following the occurrence of such event, and (C) if and when obtained, provide the Company with a true and complete copy of a new financing commitment that provides for such alternative financing. Ultimate Parent shall have the right from time to time to amend, modify, supplement, restate, assign, substitute or replace any of the date of this Agreement Debt Commitment Letter or any Debt Financing Document from the respective commitments contained in the same and/or an alternative Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redactedSource; provided, that any such amendment, modification, supplement, restatement, assignment, substitution or replacement shall not, without the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability prior written consent of the Committed Financing Company (such consent not to be unreasonably withheld, conditioned or delayed) (1) add any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees precedent or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent contingencies related to the funding of the full Debt Financing on the Closing Date (beyond the Financing Conditions) that would result in the conditions to such funding being materially less likely to be satisfied or (2) be reasonably expected to impede or delay in any material respect the consummation of the Merger and the other transactions contemplated by this Agreement. For purposes of this Section 5.15 and Section 5.16 below, references to “Debt Financing” shall include the financing contemplated by the Debt Commitment Letter as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (including in the event of a Financing Failure Event) and references to “Debt Financing Documents” or “Debt Commitment Letter” shall include such documents as permitted to be amended, modified, supplemented, restated, assigned, substituted or replaced by this Section 5.15 (including in the event of a Financing Failure Event). Ultimate Parent shall be permitted to reduce the amount of Debt Financing under the Committed FinancingDebt Commitment Letter in its reasonable discretion, provided, that Ultimate Parent shall not reduce the Debt Financing to an amount committed below the amount that is required, together with other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As financial resources of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Ultimate Parent, any other party thereto under the Financing CommitmentParent and Merger Sub including cash, in each casecash equivalents and marketable securities of Ultimate Parent, under the terms of the Committed FinancingParent, other than any such defaultMerger Sub, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its the Company’s Subsidiaries of on the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as to consummate the Merger on the terms contemplated by this Agreement, and provided, further, that such reduction shall not (I) add any conditions precedent or other contingencies related to the funding of the date hereof, Parent has no reason to believe Debt Financing on the Closing Date (beyond the Financing Conditions) that any of would result in the conditions to such funding being materially less likely to be satisfied or (II) be reasonably expected to impede or delay in any material respect the availability consummation of the Committed Financing Merger and the other transactions contemplated by this Agreement. For the avoidance of doubt, the syndication of the Debt Financing to the extent permitted by the Debt Commitment applicable Letter and subject to it will the conditions contained therein shall not be satisfied on the Charter Closing Date deemed to violate Ultimate Parent’s or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other Parent’s obligations under this Agreement that Agreement. Ultimate Parent obtain shall consult with and keep the Committed Financing or any other financing for or related to any Company informed in reasonable detail of the Transactionsstatus of Ultimate Parent’s efforts to arrange the Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (St Jude Medical Inc), Agreement and Plan of Merger (Thoratec Corp)
Financing. Parent (a) Sequential has made available delivered to the Company MSLO a true, complete and correct copy of (i) the executed debt commitment letter, dated March 26as of the date hereof between Sequential and GSO Capital Partners, 2018LP (such commitment letter and all fee letters associated therewith, among Parent (in each case as amended or its applicable Affiliate) and otherwise modified only to the financial institutions party thereto (including all exhibits, schedules and annexes theretoextent permitted by this Agreement, collectively, the “Financing CommitmentCommitments”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions set forth therein, to lend the aggregate principal amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding of financing the Transactions transactions contemplated by this Agreement and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment PapersFinancing”). The As of the date hereof, (a) the Financing Commitment Papers Commitments have not been amended amended, restated or modified prior otherwise modified, (b) no amendment, restatement or other modification to the date of this Agreement Financing Commitments is contemplated and as of the date of this Agreement (c) the respective commitments contained in the Financing Commitment Commitments have not been withdrawn reduced, withdrawn, terminated or rescinded in any respectrespect and, to Sequential’s knowledge, no reduction, withdrawal, termination or rescission is contemplated. Except for the Fee Letter fee letter referenced in the Financing Commitments (a true, complete and correct copy of which has been provided to MSLO, with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that certain economic terms of the market flex agreed to by the parties redacted, none of which redacted provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to will adversely affect the availability of of, or impose conditions on the Committed Financing or any reduction in availability of, the full amount of the Committed FinancingFinancing at Closing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or other agreements, Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers Commitments delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company MSLO on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect and constitute the legal, valid and binding obligation of Sequential, and to the knowledge of Sequential, the other parties thereto, enforceable in accordance with their terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law). There are no conditions precedent or other contingencies (including pursuant to any “market flex” provisions in the related fee letter or otherwise) related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitments. As of the date hereof, (i) Sequential is not in default or breach under the terms and conditions of the Financing Commitments and no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent Sequential or, to the Knowledge knowledge of ParentSequential, any other party thereto under the Financing Commitment, in each casethereto, under the terms and conditions of the Committed FinancingFinancing Commitments and (ii) Sequential has not received any written notice of such default or event. All commitment and other fees required to be paid on or prior to the date hereof under the Financing Commitments have been paid and, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to assuming the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy conditions precedent to Sequential’s obligations in Section 7.1 and 7.3 hereunder, Sequential does not have any reason to believe that it will not be able to satisfy any term or condition of closing of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries Financing that is required to be satisfied as a condition to availability of the covenants contained in this Agreement and (iii) Financing or that the conditions set forth in Article VII are satisfied at full amount of the Charter Financing will not be made available to Sequential on the Closing DateDate and, as of the date hereof, Parent has no reason to believe that any Sequential is not aware of the existence of any facts or events that would reasonably be expected to cause such conditions to the availability Financing not to be satisfied or the full amount of the Committed Financing not to be available. The aggregate proceeds contemplated by to be provided under the Financing Commitment applicable Commitments, together with Sequential’s existing resources, in the aggregate, will be sufficient to it will not make all required payments in connection with the MSLO Merger and the other transactions contemplated hereby, including payment of the MSLO Cash Consideration, any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all indebtedness of MSLO and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection therewith) and all other amounts to be paid pursuant to this Agreement and associated fees, costs and expenses of the Mergers and the other transactions contemplated hereby, including the Financing, on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent Sequential affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent it obtain the Committed Financing or any other financing for for, or related to to, any of the Transactionstransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Martha Stewart Living Omnimedia Inc), Agreement and Plan of Merger (Sequential Brands Group, Inc.)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the executed equity commitment letter, dated as of the date of this Agreement (the “Equity Financing Commitment”), pursuant to which 3G Special Situations Fund II L.P. (“Sponsor”) has committed, upon the terms and subject to the conditions thereof, to invest in Parent the cash amount set forth therein (the “Equity Financing”), and (ii) the executed commitment letter, dated March 26, 2018as of the date hereof, among Parent Parent, X.X. Xxxxxx Xxxxx Bank, N.A., X.X. Xxxxxx Securities LLC, and Barclays Bank PLC (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentDebt Commitment Letter”), pursuant to which the lenders party thereto have committedagreed, upon the terms and subject to the terms and conditions thereinthereof, to lend the amounts (which includes up to $900,000,000.00 in bridge financing (the “Bridge Financing”) to be utilized in the event the placement of senior notes (the “High Yield Financing”) is not consummated) set forth therein (the “Committed Financing”) for the purposes of, among other things, funding of financing the Transactions transactions contemplated by this Agreement and related fees and expenses and the refinancing of any outstanding indebtedness of the Company (iiincluding under the Existing Credit Agreement) (the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter‘‘Debt Financing” and, together with the Financing CommitmentEquity Financing, the “Financing Commitment PapersFinancing”). The Debt Commitment Letter and the related Fee Letter and the Equity Financing Commitment Papers have not are referred to collectively in this Agreement as the “Financing Agreements”. None of the Financing Agreements has been amended or modified prior to the date of this Agreement Agreement, no such amendment or modification is contemplated and as none of the date of this Agreement the respective commitments contained in the Financing Commitment Agreements have not been withdrawn or rescinded in any respect. As of the date of this Agreement, the Financing Agreements are in full force and effect. Except for the Fee Letter (with only a fee amounts letter and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) fee credit letter relating to fees with respect to the availability Debt Financing and an engagement letter (complete copies of which have been provided to the Company, with only the fee amounts and certain economic terms of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing market flex (none of which would adversely affect, or impose additional conditions upon, effect the aggregate amount, enforceability amount or availability of the Committed Debt Financing) redacted), as of the date hereof of this Agreement there are no side letters or other agreements, Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investinginvestment, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers Agreements delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Agreements that are payable on or prior to the date hereof, Parent will, directly . The only conditions precedent or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior other contingencies related to the Charter Closing Date and as obligations of the date hereof, each Sponsor to fund the full amount of the Equity Financing and lenders to fund the full amount of Debt Financing are those expressly set forth in the Equity Financing Commitment Papers is in full force and effect and is the legalDebt Commitment Letter, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtrespectively. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge of Parent, Sub or any other party thereto direct investor in Parent under any term, or a failure of any condition, of the Financing Commitment, Agreements or otherwise be reasonably likely to result in each case, under the terms any portion of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) Financing contemplated thereby to the satisfaction of the applicable Financing Sourcesbe unavailable. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as As of the date hereofof this Agreement, neither Parent nor Sub has no any reason to believe that it will be unable to satisfy on a timely basis any term or condition of the Financing Agreements required to be satisfied by it. Based on the terms and conditions of this Agreement, the proceeds from the Financing will be sufficient to provide Parent and Sub with the availability funds necessary to pay the aggregate Offer Price and Merger Consideration, the Equity Awards Amount, any repayment or refinancing of debt contemplated in this Agreement or the Financing Agreements (including repayment of indebtedness under the Existing Credit Agreement), the payment of all other amounts required to be paid in connection with the consummation of the Committed Financing transactions contemplated by the Financing Commitment applicable this Agreement and to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available allow Parent and Sub to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any perform all of its other their obligations under this Agreement that and pay all fees and expenses to be paid by Parent obtain the Committed Financing or any other financing for or Sub related to any of the Transactions.transactions contemplated by this Agreement. [...]
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger
Financing. Parent (a) The Purchaser has made available delivered to the Company a true, Seller true and complete and correct copy copies of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) letters with the lenders and the financial institutions arrangers party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentLenders”) (including (i) all exhibits, schedules, annexes and amendments to such letters in effect as of the date of this Agreement (other than any fee letters) and (ii) any fee or engagement letters with the Lenders associated therewith that contain any conditions to funding or “flex” provisions, but excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties) (collectively, the “Debt Commitment Letters”), pursuant to which the lenders party thereto Lenders have committedagreed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the transactions contemplated by this Agreement (the “Committed Debt Financing”) for ). The Purchaser has also delivered to the purposes of, among other things, funding the Transactions Seller a true and related fees and expenses and (ii) complete copy of the executed fee equity commitment letter associated therewith; provided(including all exhibits, schedules, annexes and amendments to such fee letter may be redacted in effect as described below of the date of this Agreement), dated as of the date of this Agreement, between Parent and the Investor (as so redactedthe “Equity Commitment” and together with the Debt Commitment Letters, the “Fee LetterFinancing Commitments”), pursuant to which the Investor has agreed, subject to the terms and conditions set forth therein, to invest in Parent, directly or indirectly, the cash amounts set forth therein for the purpose of funding a portion of the funds required to pay the Closing Payment upon the Closing pursuant to this Agreement (the “Equity Financing” and, together with the Financing CommitmentDebt Financing, the “Financing Commitment PapersAcquisition Financing”). The Financing Commitment Papers have not been amended or modified prior to the date Commitments, together with any available cash of this Agreement Parent and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except its Subsidiaries, will be sufficient for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect Purchaser to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or consummate the transactions contemplated hereby other than as expressly by this Agreement on the terms and subject to the conditions set forth in the Financing Commitment Papers delivered to the Company on herein. The Purchaser or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid by it in connection with the Financing Commitment that are payable on or prior to before the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of this Agreement. The Seller is an express third party beneficiary of the date hereof, each of the Financing Equity Commitment Papers is in full force and effect and is entitled to enforce such agreement, and the legalInvestor has agreed, validsubject in all respects to Section 10.14(b), binding and enforceable obligations not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that Parent or its applicable Affiliate party theretothe Seller, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the has an adequate remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionslaw.
Appears in 2 contracts
Samples: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Financing. Parent has made available and Merger Sub have delivered to the Company a true, true and complete and correct copy of (i) the executed debt commitment letter, dated March 26as of January 21, 20182011, among Parent from Macquarie Capital (or its applicable AffiliateUSA) Inc. and the financial institutions party thereto MIHI LLC (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend regarding the amounts set forth therein for the purposes of financing the Merger and the other transactions contemplated by this Agreement and related fees and expenses (the “Debt Financing”). Parent and Merger Sub have delivered a true and complete copy of the equity commitment letter, dated as of the date of this Agreement, from the MidOcean Partners III, L.P. and its affiliated investment funds (the “Equity Financing Commitment” and together with the Debt Financing Commitment, the “Financing Commitments”), regarding the proposed equity investments set forth therein (the “Committed Equity Financing”) for ” and together with the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedDebt Financing, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment PapersFinancing”). The Financing Commitment Papers Commitments, in the forms so delivered, are in full force and effect and are legal, valid and binding obligations of Parent and Merger Sub and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments have not been amended or modified prior to the date of this Agreement Agreement, no such amendment or modification is contemplated, and as of the date of this Agreement the respective commitments commitment contained in the Financing Commitment Commitments have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Sub or, to the Knowledge of Parent, any other party thereto under any term or condition of the Financing Commitment, in each case, under Commitments; provided that Parent is not making any representation or warranty regarding the terms effect of any inaccuracy of the Committed Financing, representations and warranties in Article IV. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing other than as expressly set forth in the Financing Commitments. Parent has fully paid, or will fully pay when due, any such default, breach or failure that has been waived by and all commitment and other fees required to be paid in connection with the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing SourcesCommitments. Assuming (i) the accuracy of Section 4.03 (except to a de minimis extent), (ii) the accuracy of all other representations and warranties set forth in Article IV in all material respects and (iii) the performance by the Company in all material respects of its obligations under Section 6.01, and that the Financing Commitments are fully funded, including the funding in full of the term loan in the amount of $410,000,000 under the Debt Financing, the net proceeds of the Financing, together with the unrestricted cash or cash equivalents available to the Company, will be sufficient for the Parent and Merger Sub to pay the aggregate Merger Consideration and to pay all of the fees and expenses relating to the consummation of the Merger and the other transactions contemplated hereby. As of the date of this Agreement, Parent has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments; provided that Parent is not making any representation regarding the accuracy of the representations and warranties set forth in Article IIIIV, (ii) the performance or compliance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionshereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pre Paid Legal Services Inc), Agreement and Plan of Merger (Pre Paid Legal Services Inc)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy fully executed copies of (i) the executed commitment letter, dated March 26, 2018as of the date hereof, among Parent (or its applicable Affiliate) Parent, Bank of America, N.A. and the financial institutions party thereto (Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, including all exhibits, schedules schedules, annexes and annexes theretoamendments to such agreement in effect as of the date of this Agreement, and excerpts of those portions of each fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions (excluding provisions related solely to fees) regarding the terms and conditions of the financing to be provided thereby (collectively, the “Financing CommitmentCommitment Letter”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions thereinthereof each of the parties thereto (other than Parent), have severally agreed and committed to lend provide the amounts debt financing set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have Letter has not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect prior to the availability date of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as this Agreement. As of the date hereof there of this Agreement, the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent, the other parties thereto, subject to the Bankruptcy and Equity Exception. There are no side letters conditions precedent, “flex” provisions or Contracts or any other arrangements or understandings to which Parent is a party related to substantive provisions regarding the funding or investing, as applicable, terms and conditions of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered Letter. Subject to the Company terms and conditions of the Commitment Letter, the net proceeds of the Financing, together with other financial resources of Parent including cash on or prior to hand and the date hereof. proceeds of loans under existing revolving credit facilities of Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with on the Financing Commitment that are payable on or prior to the date hereofClosing Date, Parent will, directly or indirectlyin the aggregate, continue to pay in full be sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of any such amounts required to be paid as pursuant to Article II, and when they become due and payable on the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or prior to otherwise satisfied in connection with the Charter Closing Date and as Merger (including all indebtedness of the date hereofCompany and its Subsidiaries required to be repaid, each redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger) (all such debt, the “Required Refinancing Indebtedness”) and of the Financing Commitment Papers is all fees and expenses reasonably expected to be incurred in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtconnection herewith. As of the date hereofof this Agreement, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, (i) no event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would constitute a default or breachdefault), or failure to satisfy a condition precedent to the availability of the Committed Financingin each case, on the part of Parent or, to the Knowledge of Parent, any other party thereto under to the Financing Commitment, in each caseCommitment Letter, under the terms of the Committed FinancingCommitment Letter, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing or any other funds necessary for the satisfaction of all of Parent’s obligations under this Agreement and the payment of the Required Refinancing Indebtedness and of all fees and expenses reasonably expected to be incurred in connection herewith will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition has fully paid all fees required to be paid prior to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any date of its other obligations under this Agreement that Parent obtain pursuant to the Committed Financing or any other financing for or related to any of the TransactionsCommitment Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Silgan Holdings Inc), Agreement and Plan of Merger (Graham Packaging Co Inc.)
Financing. Parent has made available SJW and Merger Sub will have, on or prior to the Company Closing, all funds necessary to enable SJW or Merger Sub, as the case may be, to consummate the transactions contemplated by this Agreement, including payment of the aggregate Merger Consideration and the payment of all other amounts required to be paid hereunder. SJW has delivered to CTWS a true, true and complete and correct copy fully executed copies of (ia) the executed commitment letter, dated March 26as of the date hereof, 2018between SJW and JPMorgan Chase Bank, among Parent (or its applicable Affiliate) and the financial institutions party thereto (N.A., including all exhibits, schedules and annexes thereto, collectively, to such letter in effect as of the Execution Date (the “Financing CommitmentCommitment Letter”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions therein, thereof each of the parties thereto (other than SJW) have severally committed to lend the amounts set forth therein to SJW (the provision of such funds as set forth therein, but subject to the provisions of Section 6.12, the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses set forth in such Commitment Letter and (iib) any fee letters related thereto (in the executed fee letter associated therewith; provided, case of such fee letter may be letters redacted only as described below (as so redactedto the fee amounts and other economic terms that could not adversely affect the amount, net proceeds, original issue discount, conditionality, availability or termination of the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”Financing). The Financing Commitment Papers have Letter has not been amended or modified prior to the date Execution Date, and, to the knowledge of this Agreement and SJW, no such amendment or modification is contemplated as of the date Execution Date (excluding any amendment solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of this Agreement the respective Execution Date) and, as of the Execution Date, the commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for As of the Fee Execution Date, the Commitment Letter (with only fee amounts is in full force and market flex provisions effect and other customary threshold amounts redacted; providedconstitutes the legal, that the market flex provisions in such Fee Letter may not permit the imposition valid and binding obligation of any new conditions (or the modification or expansion of any existing conditions) with respect SJW and, to the availability knowledge of SJW, each of the Committed Financing other parties thereto, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or any reduction in the amount similar Laws affecting creditors’ rights generally and by general principles of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there equity. There are no side letters conditions precedent or Contracts or any other arrangements or understandings to which Parent is a party contingencies related to the funding or investing, as applicable, of the Committed full amount of the Financing or pursuant to the transactions contemplated hereby Commitment Letter, other than as expressly set forth in the Commitment Letter. Subject to the terms and conditions of the Commitment Letter, the net proceeds contemplated from the Financing, together with other financial resources of SJW, including contemplated cash on hand of SJW, will, in the aggregate, be sufficient for the satisfaction of all of SJW’s and Merger Sub’s obligations under this Agreement, including the payment of the aggregate Merger Consideration and all fees and expenses reasonably expected to be incurred in connection therewith. As of the Execution Date, (i) no event has occurred which would constitute a breach or default (or an event which with or without notice or lapse of time or both could reasonably be expected to constitute a breach or default) on the part of SJW under the Commitment Letter or, to the knowledge of SJW, any other party to the Commitment Letter, and (ii) assuming the accuracy of the representations and warranties set forth in Section 4.06 and satisfaction of the conditions to SJW’s obligation to consummate the Merger, or waiver of such conditions, SJW does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the full amount of the Financing and any other funds necessary for the satisfaction of all of SJW’s obligations under this Agreement and the payment of all fees and expenses reasonably expected to be incurred in connection therewith will not be available to SJW on the Closing Date. As of the Execution Date, there are no side letters or other agreements, Contracts or arrangements that could affect the availability of the Financing or any portion thereof other than as expressly set forth in the Commitment Papers Letter and delivered to the Company on or CTWS prior to the date hereofExecution Date. Parent SJW has fully paid any and (or caused to be paid) all commitment fees or other fees required to be paid by it on or prior to Execution Date in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy fully executed copies of (iA) the executed commitment letter, dated March 26as of July 23, 20182012, among between Parent and Bank of America, N.A. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing Commitment”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions therein, thereof each of the parties thereto (other than Parent) has agreed to lend the amounts set forth therein (the provision of such funds as set forth therein on the terms and conditions set forth therein, the “Committed Debt Financing”) and (B) the investment agreement, dated as of July 23, 2012, between Parent and Carlyle Partners V, L.P. (the “Equity Financing Commitment”; and, together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which and subject to the terms and conditions thereof the party thereto (other than Parent) has agreed to invest the amounts set forth therein in the form of equity securities to be issued by Parent (the provision of such funds as set forth therein on the terms and conditions set forth therein, the “Equity Financing”; and, together with the Debt Financing, the “Financing”) for the purposes ofof permitting Parent and Merger Sub to consummate the Merger and the transactions contemplated hereby on a timely basis and to (i) effect, among other thingsas required, funding the Transactions repayment or refinancing of any outstanding Indebtedness that may become due and related payable as a result of the Merger, (ii) pay any and all fees and expenses required to be paid by Parent and Merger Sub in connection with the Merger and the Financing and (iiiii) satisfy all of the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedother payment obligations of Parent and Merger Sub contemplated hereunder. As of the date of this Agreement, the “Fee Letter” andFinancing Commitments, together with in the form so delivered, are in full force and effect and are legal, valid and binding obligations of Parent and Merger Sub and each of the other parties thereto. None of the Financing CommitmentCommitments has been amended, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended supplemented or otherwise modified prior to the date of this Agreement Agreement, and as of the date of this Agreement the respective commitments contained in the Financing Commitment Commitments have not not, prior to the date of this Agreement, been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof of this Agreement, except for the payment of customary fees, there are no side letters conditions precedent or Contracts or any other arrangements or understandings to which Parent is a party contingencies related to the funding or investing, as applicable, of the Committed Financing or full amounts of the transactions contemplated hereby Financing, other than as expressly set forth in or contemplated by the Financing Commitment Papers delivered to the Company on or prior to the date hereofCommitments. Parent has and Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid by it in connection with the Financing Commitment that are payable them on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthis Agreement. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent oror Merger Sub, and to the Knowledge of Parent, any other party thereto parties thereto, under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing SourcesCommitments. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as As of the date hereofof this Agreement, neither Parent nor Merger Sub has no any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it Commitments will not be satisfied on the Charter Closing Date or that any portion of the Committed Financing to be made thereunder will not otherwise be made available to Parent or Merger Sub on the Charter Closing Date. Parent affirms that it is not a condition will provide to the Charter ClosingCompany any amendments to the Financing Commitments, the Merger Closing and the Pre-Closing Dividend or as promptly as possible (but in any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any event within 48 hours of the Transactionseffectiveness of such amendment).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Genesee & Wyoming Inc), Agreement and Plan of Merger (Railamerica Inc /De)
Financing. Parent has made available delivered to the Company a true, complete and correct copy fully executed copies of a commitment letter (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) together with the executed fee letter associated therewith; providedrelated thereto of even date herewith from BMO Capital Markets Corp. and any related exhibits, schedules, annexes, supplements, term sheets and other agreements (which such fee letter may be redacted so long as described below no redaction covers terms that would adversely affect the aggregate amount, conditionality, availability or termination of the debt financing contemplated therein)), which provide such lenders’ respective commitments to provide Parent with bank debt financing in connection with the transactions contemplated hereby in the amount set forth therein (as so redactedcollectively, the “Fee Letter” and, together with the Financing CommitmentCommitment Letters”) (such debt financing, the “Financing Commitment PapersFinancing”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, a valid and binding and enforceable obligations obligation of Parent or and any of its applicable Affiliate affiliates party theretothereto and, as applicable, and to the Knowledge knowledge of Parent, each of the other parties theretothereto and enforceable against Parent and any of its affiliates party thereto and, to the knowledge of Parent, the other parties thereto in accordance with their terms, except that (x) insofar as such enforceability may be subject to limited by the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion Exceptions. As of the court before which any proceeding therefor may be broughtdate hereof, the Commitment Letter has not been amended or modified, and the commitments contained in the Commitment Letter have not been withdrawn, rescinded or otherwise modified. As of the date hereof, there are no conditions precedent related side letters or other arrangements relating to the funding Commitment Letter that would reasonably be expected to affect the availability of the funding in full amount of the Committed FinancingFinancing at the Closing. As of the date of this Agreement, Parent has fully paid, or caused to be fully paid, any and all commitment fees or other than as expressly set forth fees that have been incurred and are due and required to be paid in connection with the Financing Commitment Papers delivered to the Company Letter on or prior to the date hereofof this Agreement. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a material default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent orunder any term or condition of the Commitment Letter, or otherwise result in any portion of the Financing contemplated thereby to be unavailable. There are no conditions precedent or other contingencies related to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms funding of the Committed full amount of the Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties as set forth in Article III, (ii) the performance by Commitment Letter in the Company and its Subsidiaries form so delivered to the Company. The aggregate proceeds of the covenants contained in this Agreement and (iii) Financing, together with the conditions set forth in Article VII are satisfied at the Charter Closing Date, as cash or other sources of the date hereof, immediately available funds that Parent has no reason to believe that any of the conditions or will have prior to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, are in an amount sufficient to enable it to consummate the Merger Closing and the Pre-Closing Dividend or other transactions contemplated hereby and to pay any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsfees and expenses.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Yodlee Inc), Agreement and Plan of Merger (Envestnet, Inc.)
Financing. Parent (a)Parent has made available delivered to the Company a true, true and complete and correct copy copies of (ia) the an executed commitment letterletter dated as of October 27, 2023 from Fortress Credit Corp. and an executed commitment letter dated March 26as of October 30, 20182023 from AI Partners Asset Management Co., among Parent Ltd. (or its applicable Affiliateeach, a “Lender” and together, the “Lenders”) and the financial institutions party thereto (including together with all exhibits, annexes and schedules thereto and annexes theretothe executed fee letter in connection therewith (which may be redacted to omit fee amounts, collectivelyflex provisions, pricing terms and pricing caps; provided, that none of the redacted terms (x) could reasonably be expected to adversely affect the availability of the Committed Debt Financing or (y) affect the conditionality, enforceability, availability or aggregate principal amount of the Committed Debt Financing attached thereto or contemplated thereby) and as the same may be amended pursuant to Section 6.10, the “Debt Financing CommitmentCommitments”), pursuant to which the lenders party thereto Lenders have committedagreed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the debt amounts set forth therein (the “Committed Debt Financing”) and (b) the executed Purchase Agreement and Contribution Agreement (together with the Debt Financing Commitments, the “Financing Commitments”) which contemplate the Preferred Stock Financing (together with the Committed Debt Financing, the “Committed Financing”), in each case for the purposes of, among other things, of funding the Transactions transactions contemplated by this Agreement and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”)expenses. The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each Each of the Financing Commitment Papers is in full force Commitments have been duly executed and effect and is validly delivered by the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Battalion Oil Corp), Agreement and Plan of Merger (Battalion Oil Corp)
Financing. Parent Buyer has made available delivered to the Company Seller a true, true and complete and correct copy of (i) the executed commitment letterDebt Commitment Letter and Equity Commitment Letter, dated March 26attached hereto as Exhibits A and B, 2018respectively (including, among Parent (or its applicable Affiliate) and in each case, the financial institutions party thereto (including all exhibits, schedules exhibits and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Neither of the Commitment Papers have not Letters has been amended or modified in any manner prior to the date of this Agreement Agreement. Neither Buyer nor any of its Affiliates has entered into any agreement, side letter or other arrangement (other than customary engagement letters and as fee letters that Buyer has delivered to Seller prior to the date hereof (with only fee amounts and the “market flex” provisions relating to the pricing and other economic terms of the date Debt Financing redacted) relating to the Financing of this Agreement the Purchase Price or the Sale Leaseback Financing, other than as set forth in the Commitment Letters or the Sale Leaseback Agreement. The aggregate proceeds of the Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto), when funded, together with the proceeds from the Sale Leaseback Financing, will be sufficient to consummate the transactions contemplated hereby, including the payment of the Purchase Price on the Closing Date. The respective commitments contained in the Financing Equity Commitment Letter and, as of the date hereof, the Debt Commitment Letter, have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability Each of the Committed Financing or any reduction in the amount of the Committed Financing)Equity Commitment Letter and, certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Debt Commitment Papers is Letter are in full force and effect and is the legal, represent a valid, binding and enforceable obligations obligation of Parent or its applicable Affiliate Buyer and, to the Buyer’s knowledge, each other party thereto, as applicable, and to provide the financing contemplated thereby subject only to the Knowledge of Parent, each satisfaction or waiver of the other parties theretoFinancing Conditions and except as limited by applicable bankruptcy, except that (x) enforceability may be subject to insolvency, reorganization, moratorium and similar Laws affecting the Enforceability Limitations enforcement of creditors’ rights and (y) the remedy of specific performance and injunctive and other forms of remedies generally, by general equitable relief may be subject to equitable defenses and to principles or by the discretion of the court any Governmental Authority before which any proceeding therefor Action seeking enforcement may be broughtbrought (regardless of whether enforcement is sought in a proceeding at law or in equity). As Assuming the accuracy of the representations and warranties of Seller contained in Article III and the representations and warranties set forth on Schedule 3.24, as of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent Buyer or, to the Knowledge of ParentBuyer’s knowledge, any other party thereto under the Financing Commitment, in each case, under the terms any of the Committed FinancingCommitment Letters, other than any such default, default or breach or failure that has been irrevocably waived by the lenders relevant Financing Sources or the applicable Equity Investor, as the case may be, or otherwise cured in a timely manner by Parent cured. Buyer has fully paid (or its Affiliatecaused to be paid) any and all commitment fees and other amounts that are required to be paid on or prior to the satisfaction date of this Agreement in connection with the Financing. There are no conditions precedent or other contingencies related to the funding of the applicable Financing Sources. Assuming (i) the accuracy full amount of the representations and warranties set forth in Article IIIFinancing, (ii) other than the performance by Financing Conditions. The only conditions precedent or other contingencies related to the Company and its Subsidiaries funding of the covenants Debt Financing on the Closing Date that will be included in the Debt Financing Documents shall be the Financing Conditions contained in the Debt Commitment Letter. Buyer understands and acknowledges that under the terms of this Agreement and (iii) Agreement, Buyer’s obligation to consummate the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it acquisition is not a condition in any way contingent upon or otherwise subject to Buyer’s consummation of any financing arrangements, Buyer’s obtaining of any financing or the Charter Closingavailability, the Merger Closing and the Pre-Closing Dividend grant, provision or extension of any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsBuyer.
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Darden Restaurants Inc), Asset and Stock Purchase Agreement (Darden Restaurants Inc)
Financing. As of the date of this Agreement, Parent has made available to the Company a truereceived (a) an executed debt commitment letter dated as of July 21, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein 2015 (the “Committed FinancingCommitment Letter”) for from the purposes oflenders signatory thereto (the “Lenders”) to provide financing in an aggregate amount of Euro 1.2 billion to Parent or its Affiliates, among other things, funding the Transactions and related fees and expenses and (iib) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended a facilities agreement dated on or modified prior to the date of this Agreement executed by Parent and as the Lenders (the “Facilities Agreement” and together with the Commitment Letter, the “Financing Agreements”). True and complete copies of the date of this Agreement the respective commitments contained in the Financing Commitment Agreements have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect previously provided to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofCompany. Parent has fully paid or will pay when due any and all commitment fees or other fees required by the Financing Agreements to be paid by it in connection with the Financing Commitment that are payable on or prior to before the date hereof, Parent will, directly or indirectly, continue to of this Agreement and will pay in full any such amounts required to be paid as and all additional fees when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtdue. As of the date hereofof this Agreement, there the Financing Agreements are valid, binding and in full force and effect, do not contain any material misrepresentation by Parent and no event has occurred which (with or without notice, lapse of time or both) would reasonably be expected to constitute a breach thereunder on the part of Parent. There are no conditions precedent or other contingencies related to the funding of the full amounts contemplated by the financing arrangements set forth in the Financing Agreements (the “Financing”), other than as set forth in the Financing Agreements. The Lenders have received the items described on Schedule 5.7. The aggregate proceeds contemplated by the Financing Agreements, together with available cash of Parent, will be sufficient for Parent to complete the Transaction, and to satisfy all of the obligations of Parent under this Agreement, including paying the closing payments set forth in Section 2.5 at the Closing and paying all related fees and expenses. Parent has not incurred any obligation, commitment, restriction or liability of any kind, and Parent is not contemplating or aware of any obligation, commitment, restriction or liability of any kind, in either case which would reasonably be expected to impair or adversely affect such resources. No Contract (excluding the Financing Agreements) between the Lenders, on the one hand, and Parent or any of its Affiliates, on the other hand, contains any conditions precedent or other contingencies related to the funding of the full amount of the Committed Financing, other than as expressly Financing or any provisions that could materially reduce the aggregate amount of the Financing set forth in the Financing Commitment Papers delivered Agreements or otherwise materially impact Parent’s ability to consummate the Company on or prior to the date hereofTransaction. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereofAgreement, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable would not reasonably be expected to it will not be satisfied on the Charter Closing Date or that the Committed Financing will would not reasonably be made expected to be available to Parent on the Charter Closing Date. For the avoidance of doubt, Parent affirms acknowledges and agrees that it receipt of the proceeds contemplated by the Financing is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Affinia Group Intermediate Holdings Inc.)
Financing. Parent (a) Purchaser has made available delivered to the Company a Seller true, complete and correct copy copies of (i) the executed debt commitment letter, dated March 26as of December 19, 20182012, among Parent (or its applicable Affiliate) between Purchaser and Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Royal Bank of Canada and the financial institutions party thereto executed fee letters associated therewith (including provided, that provisions in the fee letters related to fees, pricing caps and certain economic terms of the market flex (none of which would adversely affect the amount or availability of the Debt Financing) may be redacted) (such commitment letter, together with all exhibits, schedules schedules, annexes, supplements and annexes theretoamendments thereto and the fee letters, collectively, the “Debt Financing Commitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms and conditions set forth therein, Bank of America, N.A. and Royal Bank of Canada have agreed to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes of, among other things, purpose of funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “transactions contemplated by this Agreement. The Debt Financing Commitment Papers”). The Financing Commitment Papers have has not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement Agreement, and no such amendment, restatement, modification or waiver is contemplated (except for amendments or modifications permitted by Section 6.11, and, as of the date of this Agreement hereof, the respective commitments commitment contained in the Debt Financing Commitment have has not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof hereof, there are, and are contemplated to be, no other agreements, side letters or Contracts or any other arrangements or understandings to which Parent is a party related relating to the funding or investing, as applicable, of the Committed Debt Financing or the transactions contemplated hereby Commitment (other than as expressly set forth in the Debt Financing Commitment Papers delivered furnished to Seller pursuant to this Section 5.07(a)). As of the date hereof, the Debt Financing Commitment is in full force and effect and constitutes the legal, valid and binding obligations of each of Purchaser and, to the Company on knowledge of Purchaser, the other parties thereto. There are no conditions or other contingencies related to the funding of the full amount of the Debt Financing (including any “flex” provisions), other than as expressly set forth in the Debt Financing Commitment. Assuming performance by Seller of its obligations that are required to be performed prior to the Closing, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Debt Financing Commitment, together with Purchaser’s cash on hand plus proceeds of sales of stock, if any, in lieu of issuance of the Stock Consideration, will be sufficient for Purchaser to pay the Estimated Cash Consideration on the Closing Date, any payment required to be made by Purchaser pursuant to Section 3.05 and all related fees and expenses and any other payment contemplated in this Agreement. As of the date hereof, (i) no event has occurred that would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Purchaser under the Debt Financing Commitment and (ii) Purchaser does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Purchaser on the Closing Date. Parent Purchaser has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior hereof pursuant to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Debt Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct fully-executed copy of (i) the executed commitment letter, dated March 26as of September 15, 2018, 2010 among Parent and Banc of America Securities LLC and Banc of America Bridge LLC (or its applicable Affiliate) and the financial institutions party thereto (“Financing Sources”), including all exhibits, schedules schedules, annexes and amendments to such commitment letter in effect as of the date of this Agreement (other than fee letters and engagement letters, provided, that Parent has delivered excerpts of those portions of such fee letters and engagement letters that contain any conditions to funding or “flex” provisions or other provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties) regarding the terms and conditions of the financing to be provided thereby) (such commitment letter, including all exhibits, schedules, annexes theretoand amendments thereto and each such fee letter and engagement letter, collectively, the “Financing CommitmentCommitment Letter”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions therein, thereof the Financing Sources have agreed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, set forth in such fee letter may be redacted as described below (as so redacted, the “Fee Commitment Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have Letter has not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement Agreement, and as of the date of this Agreement the respective commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofof this Agreement. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as As of the date hereofof this Agreement, each of the Financing Commitment Papers Letter is in full force and effect and is constitutes the legal, valid, valid and binding and enforceable obligations obligation of each of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge knowledge of Parent, each of the other parties theretoFinancing Sources, except that (x) enforceability may be subject to the Enforceability Limitations applicable bankruptcy, insolvency, moratorium or other similar Laws relating to creditors’ rights and (y) the remedy general principles of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity. As of the date hereof, there There are no conditions precedent or contingencies related to the funding of the full amount of the Committed FinancingFinancing (including pursuant to any “flex” provisions in connection therewith), other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As Letter, and as of the date hereof, of this Agreement there are no event has occurred which, with side letters or without notice, lapse of time other contracts or both, would constitute a default or breach, or failure to satisfy a condition precedent arrangements related to the availability Financing other than the Commitment Letter. Assuming the accuracy of the Committed representations and warranties set forth in Section 3.2 and Section 3.6(b) and the Company’s compliance with its obligations under Section 5.1(b) and Section 5.1(i), subject to the terms and conditions of the Commitment Letter, the net proceeds contemplated from the Financing, on the part together with other financial resources of Parent orand Merger Sub, to including cash on hand and marketable securities of Parent and Merger Sub at the Knowledge of ParentEffective Time, any other party thereto under the Financing Commitmentwill, in each casethe aggregate, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to be sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement, including (a) the applicable Financing Sourcespayment of the Merger Consideration and any other amounts required to be paid pursuant to Article II, and (b) the payment of all fees and expenses and other payment obligations required to be paid or satisfied by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing, including any repayment or refinancing of Indebtedness as a result of the consummation of the Merger. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date of this Agreement, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), in each case, on the part of Parent or Merger Sub under the Commitment Letter or, to the knowledge of Parent and Merger Sub, any of the Financing Sources, and (ii) subject to the satisfaction of the conditions contained in Section 7.1 and Section 7.2 hereof, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any other funds necessary for the satisfaction of its other all of Parent’s and Merger Sub’s obligations under this Agreement that will not be available to Parent obtain at the Committed Financing Effective Time. Parent has fully paid all commitment fees or any other financing for or related fees required to any be paid prior to the date of this Agreement pursuant to the TransactionsCommitment Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Clearwater Paper Corp), Agreement and Plan of Merger (Cellu Tissue Holdings, Inc.)
Financing. Parent has made available to the Company a true, complete and correct copy of (ia) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject Subject to the terms and conditions thereinof this Agreement, Parent shall use its commercially reasonable efforts to lend obtain the amounts set forth therein Debt Financing on the terms and conditions (including “market flex” provisions) described in the Debt Financing Commitment, including using its commercially reasonable efforts to (i) comply with its obligations under the Debt Financing Commitment and any definitive agreements related thereto (the “Committed FinancingDebt Financing Documents”) for the purposes of), among other things, funding the Transactions and related fees and expenses and (ii) maintain in effect the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Debt Financing Commitment, (iii) negotiate and enter into Debt Financing Documents on a timely basis on terms and conditions (including the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments market flex” provisions) contained in the Debt Financing Commitment or otherwise not materially less favorable with respect to conditionality to Parent in the aggregate than those contained in the Debt Financing Commitment, (iv) satisfy on a timely basis all conditions contained in the Debt Financing Commitment that are applicable to Parent and within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing and (v) if all conditions to the Debt Financing Commitment have not been withdrawn or rescinded in any respect. Except for satisfied, cause the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that Commitment Parties to consummate the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Debt Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on at or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms being understood that it is not a condition to Closing under this Agreement for Parent to obtain the Charter ClosingDebt Financing). Parent shall give the Company prompt notice upon having knowledge of any breach by any Commitment Party under the Debt Financing Documents or any termination of any of the Debt Financing Documents. Other than as set forth in this Section 6.16, Parent shall not, without the prior written consent of the Company, amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the Debt Financing Documents or any other provision of, or remedies under, the Debt Financing Documents (other than in accordance with the “market flex” provisions), in each case to the extent such amendment, modification, supplement or waiver (i) would reasonably be expected to have the effect of (A) adversely affecting the ability of Parent to timely consummate the Merger and other transactions contemplated by this Agreement or (B) delaying the Closing or (ii) contains conditions and other terms that would reasonably be expected to affect the Pre-Closing Dividend availability of the Debt Financing that are more onerous, taken as a whole, than those conditions and terms contained in the Debt Financing Commitment as of the date hereof; provided that notwithstanding any other provision of this Agreement, Parent shall be entitled from time to time to (x) amend, restate, replace, supplement or otherwise modify, or waive any of its other obligations under this Agreement that Parent obtain rights under, the Committed Debt Financing Commitment or any substitute other financing for all or related to any portion of the Transactions.Debt Financing from the same or alternative financing sources, and (y) amend, restate, replace, supplement or otherwise modify the Debt Financing Commitment for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners or other persons that have not executed the Debt Financing Commitment as of the date hereof, in each case, subject to subclauses (i) and (ii) above. Upon any such amendment, supplement or modification, in accordance with the terms of this Section 6.16(a), the term “
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cincinnati Bell Inc), Agreement and Plan of Merger (Cincinnati Bell Inc)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct fully executed copy of (i) the executed commitment letter, dated March 26as of July 2, 20182015, among Parent between Parent, Xxxxx Fargo Bank, National Association (or its applicable Affiliate“WF Bank”), WF Investment Holdings, LLC (“WFIH”) and the financial institutions party thereto Xxxxx Fargo Securities, LLC (“WF Securities”, together with WF Bank and WFIH, “Xxxxx Fargo”), including all exhibits, schedules schedules, annexes and annexes thereto, collectively, amendments to such letter in effect as of the date of this Agreement (the “Financing CommitmentCommitment Letter”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions therein, thereof the lender thereunder has committed to lend the amounts set forth therein (the provision of such funds as set forth therein, but subject to the provisions of Section 5.10, the “Committed Financing”) for the purposes ofset forth in such Commitment Letter. Parent has also delivered to the Company a correct and complete fully executed copy of (i) the Initial Lenders Fee Letter and the Structuring and Administrative Fee Letter, among other thingseach dated as of July 2, funding the Transactions 2015, between Parent and related fees and expenses Xxxxx Fargo and (ii) the executed Engagement Letter, dated as of July 2, 2015, between Parent and WF Securities; provided that the fee letter associated therewith; providedamounts, such fee letter may be redacted as described below (as so redactedpricing caps and other economic terms, and the rates and amounts included in the “Fee Lettermarket flex” and, together with the Financing Commitment, the “Financing Commitment Papers”)provisions (but not covenants) have been redacted. The Financing Commitment Papers have Letter has not been amended amended, restated or otherwise modified or waived prior to the date execution and delivery of this Agreement Agreement, and as of the date of this Agreement the respective commitments contained in the Financing Commitment Letter have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect prior to the availability execution and delivery of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as this Agreement. As of the date hereof of this Agreement, there are no other Contracts, side letters or Contracts or any other arrangements or understandings to which Parent or any of its Subsidiaries is a party or by which Parent or any of its Subsidiaries is bound relating to the availability, amount or conditionality of the Financing. As of the execution and delivery of this Agreement, the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent, the other parties thereto, except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought. Parent has fully paid (or caused to be fully paid) any and all commitment fees or other fees required by the Commitment Letters to be paid on or before the date of this Agreement. There are no conditions precedent (including pursuant to any “flex” provisions) related to the funding or investing, as applicable, of the Committed full amount of the Financing or pursuant to the transactions contemplated hereby Commitment Letter, other than as expressly set forth in the Financing Commitment Papers delivered Letter. Subject to the terms and conditions of the Commitment Letter, assuming the accuracy of the Company’s representations and warranties contained in Article III and assuming no breach or default by the Company of its covenants contained in Section 5.1, the net proceeds contemplated from the Financing, together with cash on hand and marketable securities of Parent and of the Company and its Subsidiaries on the Closing Date, will, in the aggregate, be sufficient for the payment of the aggregate cash portion of the Merger Consideration and any other amounts required to be paid pursuant to Article II hereof, the funding of any required refinancings or prior repayments of any existing Indebtedness of the Company or Parent in connection with the Merger and the payment of all fees and expenses reasonably expected to be incurred by Parent, the Merger Subs and the Surviving Corporation in connection with the Merger and the Financing (collectively, such amount, the “Required Funding Amount”). As of the date of this Agreement, no event has occurred which would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Parent or either of the Merger Subs under the Commitment Letter, and Parent does not have any reason to believe that any of the conditions to the date hereofFinancing will not be satisfied or that Financing will not be available to Parent on the Closing Date. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) in connection with the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsFinancing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Centene Corp), Agreement and Plan of Merger (Health Net Inc)
Financing. (a) Parent has made available delivered to the Company a Stockholder true, correct and complete and correct copy copies of (i) the executed commitment letter, dated March 26, 2018as of the date hereof, among Parent and AIF VII Euro Holdings, L.P. (or its applicable Affiliatethe “Equity Commitment Letter”), pursuant to which AIF VII Euro Holdings, L.P. has committed, subject to the terms and conditions thereof, to invest the cash amounts set forth therein in the manner set forth therein, and of which Stockholder is a third-party beneficiary and entitled to specific performance of the terms thereof (the “Equity Financing”) and (ii) the financial institutions party thereto executed commitment letter(s), dated as of the date hereof, among Merger Sub and each of Bank of America, N.A. and Xxxxxx Xxxxxxx Senior Funding, Inc. (including all exhibitsthe “Debt Commitment Letter” and, schedules and annexes thereto, collectivelytogether with the Equity Commitment Letter, the “Financing CommitmentLetters”), pursuant to which the lenders party counterparties thereto have committed, subject to the terms and conditions thereinthereof, to lend to Merger Sub the amounts set forth therein therein, of which no less than $50,000,000 of commitments will be made available to Merger Sub under a revolving credit facility (the “Committed FinancingCredit Facility”) for the purposes of), among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee LetterDebt Financing” and, together with the Financing CommitmentEquity Financing, the “Financing Commitment PapersFinancing”). The Financing amounts to be provided pursuant to the Equity Financing, if funded in accordance with the terms of the Equity Commitment Papers have not been amended or modified Letter, will be sufficient for Parent, when required, to contribute sufficient cash to Merger Sub such that Merger Sub will have, immediately prior to the date of this Agreement and as of Closing, without giving effect to the date of this Agreement the respective commitments contained Debt Financing, cash in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Equity Commitment Papers delivered to Letter. At the Company on or prior to Closing, assuming the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it consummation of Debt Financing, Merger Sub shall have cash in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue amount sufficient to pay in full the Closing Payment (without regard to any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (xEstimated Working Capital Adjustment) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsDividend.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (EVERTEC, Inc.), Agreement and Plan of Merger (Popular Inc)
Financing. (a) Parent has made available shall use its reasonable best efforts to (taking into account the Company a trueexpected timing for Closing) obtain, complete no later than the Closing Date, the proceeds of the Financing on the terms and correct copy of conditions described in the Commitment Letters (subject to replacement thereof in accordance with Section 5.17(c)), including (i) maintaining in effect the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) Commitment Letters in accordance with and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (it being understood that the Commitment Letters may be replaced or amended as provided below), (ii) negotiating definitive agreements with respect to the Debt Financing (the “Committed Definitive Agreements”) substantially consistent with the terms and conditions contained in the Debt Commitment Letter (including, as necessary, any “market flex” provisions contained in any related fee letter), (iii) satisfying on a timely basis (or obtaining a waiver of) all conditions in the Debt Commitment Letter and (iv) complying with the covenants applicable to it in the Commitment Letters and in the Definitive Agreements for the Financing. In the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the Cash Equity) have been satisfied, Parent shall use its reasonable best efforts to cause the Debt Financing Sources and Equity Investor to fund the Financing at Closing (including by promptly taking enforcement action in the event of a breach by the Debt Financing Sources or Equity Investor of their obligations under the Commitment Letters or Definitive Agreements); provided, however, in no event shall “reasonable best efforts” of Parent under this Section 5.17 be deemed or construed to require Parent to instigate or pursue litigation against any of the Debt Financing Sources. Parent shall not, without the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Commitment Letters if such amendment, modification, waiver or remedy (i) imposes any new (or expands or adversely modifies any existing) conditions to the consummation of the Financing in a manner that could reasonably be expected to prevent or delay the Closing or the Financing or (ii) reduces the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction); provided, however, that Parent may (x) amend, modify or supply the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties to the Debt Commitment Letter, (y) amend or modify the Debt Commitment Letter to implement the "market flex" provisions included in the related fee letter, or (z) otherwise amend or replace the Debt Commitment Letter so long as (A) such amendment does not impose terms or conditions that would reasonably be expected to delay or prevent the Closing, (B) the terms of such amendment do not reduce the amount of the Financing to an amount that would be less than the amount that would be required to pay the Financing Amount (unless, in the case of a reduction to the Debt Financing, the Cash Equity is increased by the amount of any such reduction), (C) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of Alternative Debt Financing set forth below, (D) such amendment does not adversely affects the ability of Parent to enforce its rights against other parties to the Commitment Letters or the Definitive Agreements, (E) such amendment does not waive any remedy available to Parent or its Affiliates thereunder or adversely affect the ability of Parent or its Affiliates to enforce or cause the enforcement of its rights under the Financing, (F) such amendment does not allow for the early termination of the Debt Commitment Letter or (G) such Amendment cannot reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement. In the event that any portion of the Debt Financing becomes unavailable or any of the Definitive Agreements shall be withdrawn, repudiated, terminated or rescinded, regardless of the reason therefor (other than the right of Parent to terminate this Agreement pursuant to Section 7.4 hereof) Parent will (i) use its reasonable best efforts to obtain from the same and/or alternative debt financing (in an amount, when taken together with the Cash Equity, at least equal to the Financing Amount) (the “Alternative Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) promptly notify the executed fee Company of such unavailability and the reason therefor. For the purposes of this Agreement (other than as expressly provided otherwise), the term “Debt Financing” shall be deemed to include any Alternative Debt Financing arranged in compliance herewith, and the terms “Debt Commitment Letter” and “Definitive Agreement” shall be deemed to include any commitment letter associated therewith(or similar agreement) or definitive agreement with respect to any such Alternative Debt Financing; provided, such fee letter may be redacted as described below (as so redactedthat, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior notwithstanding anything to the date of this Agreement and as of the date of this Agreement the respective commitments contained contrary herein, in the no event shall any Alternative Debt Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) amendment with respect to the availability of Debt Commitment Letter be deemed to adversely expand the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly obligations set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as this Section 5.17 of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsSubsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Starrett L S Co), Agreement and Plan of Merger (Starrett L S Co)
Financing. Parent has made available Without limiting any of the obligations of Sellers under Section 5.5 of this Agreement, Acquiror shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, prior to the Company a trueClosing Date, complete and correct copy of (i) all things necessary, proper or advisable to arrange the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to on the terms and conditions thereindescribed in the Commitment Letters (including the “flex provisions” in the related fee letter), including using reasonable best efforts to, prior to lend the amounts Closing Date, (i) maintain in effect the Debt Commitment Letter until the earlier of the date that the Closing has occurred and the date that it has been terminated in accordance with its terms and satisfy on a timely basis all conditions applicable to Acquiror obtaining the Financing set forth therein (in the “Committed Financing”) for the purposes ofCommitment Letters, among other things, funding the Transactions and related fees and expenses and (ii) negotiate and enter into definitive agreements with respect thereto that are in form and substance reasonably satisfactory to Acquiror and on the executed fee letter associated therewith; provided, such fee letter may be redacted as described below terms and conditions contemplated by the Debt Commitment Letter (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended including any related flex provisions) or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained on other terms in the Financing Commitment have aggregate not been withdrawn less favorable to Acquiror and the Companies, in the aggregate, (iii) timely prepare the necessary offering circulars, private placement memoranda, or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (offering documents or the modification or expansion of any existing conditions) marketing materials with respect to the availability Debt Financing, and (iv) assist with the syndication activities contemplated by the Debt Commitment Letter. Acquiror shall give Sellers prompt notice (A) of the Committed Financing any actual or threatened breach or default (or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, event or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred whichcircumstance that, with or without notice, lapse of time or both, would constitute a default reasonably be expected to give rise to any breach or breachdefault) by any party to any Commitment Letter or definitive document related to the Financing of which Acquiror becomes aware and which would reasonably be expected to result in Acquiror not receiving the Debt Financing or Equity Financing at the Closing, (B) if and when Acquiror becomes aware, or failure to satisfy a condition precedent to the availability receives oral or written notice, that any portion of the Committed Financing contemplated by any Commitment Letter may not be available to consummate the transactions contemplated hereby, and (C) of any termination of any Commitment Letter. Acquiror shall keep Sellers informed on a reasonably current basis in reasonable detail of the status of their efforts to arrange the Financing. Acquiror shall (1) comply in all material respects with each Commitment Letter, on and (2) except as contemplated by the part Commitment Letters, not permit, without the prior written consent of Parent orSellers, any amendment or modification to be made to, or any waiver of any provision or remedy under the Commitment Letters if such amendment, modification or waiver would (x) reduce 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 unless the Equity Financing is increased by a corresponding amount), (y) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms receipt of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured Debt Financing in a timely manner by Parent that would reasonably be expected to (I) delay or prevent the Closing, (II) make the funding of the Debt Financing (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to obtaining the availability Debt Financing) less likely to occur or (III) adversely impact the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Acquiror to consummate the transactions contemplated hereby or the likelihood of consummation of the Committed transactions contemplated hereby (provided that the existence or exercise of “flex provisions” and/or the addition of any additional arranger, lead arranger, agent or other Lender (if the addition of such additional parties, individually or in the aggregate, would not be reasonably likely to (X) delay or prevent the Closing, (Y) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (Z) adversely impact the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitments or the definitive agreements with respect thereto, the ability of Parent to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby) shall not constitute an amendment, modification or waiver of the Commitment Letters requiring the prior written consent of Sellers hereunder or otherwise constitute a breach hereof). Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 6.6 or elsewhere in this Agreement shall require, and in no event shall the “reasonable best efforts” of Acquiror be deemed or construed to require, Acquiror to (A) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, (B) seek or accept Debt Financing on terms adverse to or less favorable than those set forth in the Debt Commitment Letter (including the “flex provisions”) provided on the date of this Agreement, (C) waive any terms or conditions of this Agreement, (D) pay any fees in excess of those contemplated by the Financing Commitment applicable Letters (whether to it will not be satisfied on the Charter Closing Date secure waiver of any conditions contained therein or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition otherwise) or (E) enforce their rights against counterparties to the Charter Closing, Commitment Letters except with respect to a draw down of the Merger Closing and proceeds of the Pre-Closing Dividend or Debt Financing as provided in clause (b) of the third sentence of Section 11.14. In no event shall Acquiror have any Liability for breach of its other obligations under covenants or agreements in this Agreement that Parent obtain Section 6.6 if the Committed Financing or any other financing for or related to any of the TransactionsClosing occurs.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gates Global Inc.), Stock Purchase Agreement (Pinafore Holdings B.V.)
Financing. Parent has made available delivered to the Company a true, complete and correct copy of (i) the true and complete copies of executed commitment written commitments, except for that certain fee letter, dated March 26the date of this Agreement, 2018, among Parent from the lenders to the borrower thereunder (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “"Debt Financing Commitment”Commitments"), pursuant to which the lenders party thereto have committedagreed, subject only to the terms and conditions set forth therein, to lend provide or cause to be provided to Parent and/or Merger Sub debt financing in the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding of financing the Transactions transactions contemplated by this Agreement and related fees and expenses (the "Debt Financing") and (ii) the true and complete copies of executed fee letter associated therewith; provided, such fee letter may be redacted as described below written commitments (as so redactedcollectively, the “Fee Letter” and, "Equity Financing Commitments" and together with the Debt Financing CommitmentCommitments, the “"Financing Commitment Papers”Commitments"). The Financing Commitment Papers , pursuant to which the parties thereto have not been amended or modified prior agreed, subject only to the date terms and conditions set forth therein, to provide or cause to be provided to Parent and/or Merger Sub equity financing in the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and as related fees and expenses (the "Equity Financing" and together with the Debt Financing, the "Financing"). As of the date of this Agreement Agreement, none of the Financing Commitments has been amended or modified, and the respective commitments contained in the Financing Commitment Commitments have not been withdrawn or rescinded rescinded, in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Commitments that are payable on or prior to before the date hereofof this Agreement in connection therewith or pursuant thereto, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is Commitments are in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughteffect. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofCommitments. As of the date hereof, no No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, or Merger Sub under any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than Debt Financing Commitments. Neither Parent nor Merger Sub is aware of any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) reason why the conditions set forth in Article VII are the Financing Commitments would not be satisfied at on or before the Charter Closing Date, Date or such other earlier date as may be set forth in the Financing Commitments. Subject to the terms and conditions of the date hereofFinancing Commitments, Parent has no reason to believe that any of the conditions and subject to the availability terms and conditions of this Agreement, the Committed Financing aggregate proceeds contemplated by the Financing Commitment applicable to it will not be satisfied Commitments, together with the cash on hand of Parent and Merger Sub on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition , will be sufficient to pay the Charter Closing, the aggregate Per Share Merger Closing Consideration and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related amounts required to any be paid in connection with the consummation of the Transactionstransactions contemplated hereby, and to pay all related fees and expenses.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Topps Co Inc)
Financing. Parent The Acquirer has made available delivered to the Company a true, true and complete and correct copy copies of (i) the an executed commitment letterletter dated as of the date hereof (the “Commitment Letter” and, dated March 26together with the Fee Letter (as defined below), 2018as they may be amended, among Parent (modified or its applicable Affiliate) replaced and the financial institutions party thereto (including together with all annexes, exhibits, schedules and annexes other attachments thereto, collectively, the “Debt Financing CommitmentCommitments”), ) pursuant to which the lenders party lender parties thereto have committedagreed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the debt amounts set forth therein (such amounts, the “Committed Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letters referred to in such commitment letter associated therewith; provided(with only fee amounts, such fee letter may be redacted as described below (as so dates, pricing caps, “market flex” and other economic terms redacted, none of which would adversely affect the amount or availability of the Debt Financing) (the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to As of the date of this Agreement Agreement, none of the Debt Financing Commitments has been amended or modified, and the respective commitments contained in the Debt Financing Commitments have not been withdrawn or rescinded and, to the knowledge of the Acquirer, no withdrawal or rescission thereof is contemplated as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respectAgreement. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof there of this Agreement, the Debt Financing Commitments are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is constitute the legal, validvalid and binding obligation of the Acquirer and, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge actual knowledge of Parentthe Acquirer, each of the other parties thereto, thereto (except to the extent that (x) enforceability may be subject to limited by the Enforceability Limitations Bankruptcy and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtEquity Exception). As of the date hereof, there There are no conditions precedent related to the funding of the full amount of the Committed Financing, Debt Financing other than as expressly set forth in the Debt Financing Commitment Papers delivered to the Company on or prior to the date hereofCommitments. As of the date hereofof this Agreement, no event has occurred which, that (with or without notice, notice or lapse of time time, or both, ) would constitute a breach or default or breach, or failure to satisfy a condition precedent to under the availability of Debt Financing Commitments by the Committed Financing, on the part of Parent orAcquirer, to the Knowledge knowledge of Parentthe Acquirer, any other party thereto under to the Debt Financing Commitment, in each case, under the terms Commitments. As of the Committed Financingdate of this Agreement, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to assuming the satisfaction of the applicable Financing Sources. Assuming (i) Conditions, the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent Acquirer has no reason to believe that it will be unable to satisfy on a timely basis any term or condition to be satisfied by it and contained in the Debt Financing Commitments. The Acquirer has fully paid any and all commitment fees or other fees required by the terms of the conditions Debt Financing Commitments to be paid on or before the availability date of this Agreement. Assuming the satisfaction of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or Conditions and that the Committed Debt Financing is funded in accordance with the terms of the Commitment Letter, the Acquirer will not be made available to Parent on have, at the Charter Closing Date. Parent affirms that it is not a condition , sufficient cash, available lines of credit or other sources of immediately available funds to satisfy the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsCash Funding Requirement.
Appears in 2 contracts
Samples: Investor Rights Agreement (MKS Instruments Inc), Investor Rights Agreement (Atotech LTD)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copies, as of the date of this Agreement, of (i) the executed commitment letter, dated March 26, 2018, among securities purchase agreement from private investment funds affiliated with GTCR LLC as well as existing indirect owners of Parent (or its applicable Affiliatethe “Equity Purchase Agreement”) to invest, subject to the terms and conditions therein, cash in the financial institutions party thereto aggregate amounts set forth therein (including all exhibitsthe “Equity Financing”), schedules (ii) an executed commitment letter and annexes theretoa Redacted Fee Letter from Xxxxxx Xxxxxxx Senior Funding, collectivelyInc. and Barclays Bank PLC (the “Debt Commitment Letter” and, together with the Equity Purchase Agreement, collectively referred to as the “Financing CommitmentLetters”), pursuant to which the lenders party thereto (collectively, the “Lenders”) have committed, subject to the terms and conditions set forth therein, to lend debt financing in the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding of financing the Transactions transactions contemplated by this Agreement and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted being collectively referred to as described below (as so redacted, the “Fee Letter” andDebt Financing”, and together with the Financing CommitmentEquity Financing, collectively referred to as the “Financing Commitment PapersFinancing”). The None of the Financing Commitment Papers have not Letters has been amended or modified prior to the date of this Agreement and as of the date of this Agreement Agreement, no such amendment or modification is contemplated (other than amendments or modifications that are permitted by Section 4.10), and as of the date of this Agreement, the respective obligations and commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts letters and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof hereof, there are no side letters or Contracts agreements (whether written or oral) to which Parent, Merger Sub or any other arrangements or understandings to which Parent of their Affiliates is a party related to the funding or investing, as applicable, of the Committed Financing that could affect the availability of the Financing, or which include conditions precedent to the transactions contemplated hereby obligations of the parties thereunder, other than as expressly set forth in the Financing Commitment Papers Letters delivered to the Company on or prior to the date hereof. Parent has fully paid or caused to be fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Letters that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is Letters are in full force and effect and is are the legal, valid, binding and enforceable obligations of CII, Parent or its applicable Affiliate party theretoand Merger Sub, as applicablethe case may be, and and, to the Knowledge of ParentParent or Merger Sub, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofLetters. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of CII, Parent or Merger Sub or, to the Knowledge of ParentParent or Merger Sub, any other party thereto under any of the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing SourcesLetters. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as As of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment Letters applicable to it or CII will not be satisfied on satisfied. Assuming the Charter Financing is funded in accordance with the Financing Letters, Parent and Merger Sub, in the aggregate and together with the available cash and cash equivalents of the Company, will have at and after the Closing Date or that funds sufficient to (i) pay the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closingaggregate Merger Consideration, the Merger Closing aggregate Option Consideration and the Pre-Closing Dividend aggregate Company RSU Consideration, (ii) finance the repayment or any refinancing of its other obligations under debt contemplated by this Agreement that Parent obtain or either Financing Letter, (iii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Committed Financing or any other financing for or related to any Surviving Corporation in connection with the Merger and the Financing, and (iv) satisfy all of the Transactionsother payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zayo Group LLC), Agreement and Plan of Merger (Abovenet Inc)
Financing. Parent has made available (a) The Company agrees to provide, and shall cause the Company a trueSubsidiaries and its and their Representatives to provide, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it reasonable cooperation in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each arrangement of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner reasonably requested by Parent (or its Affiliate) to provided that such requested co-operation does not unreasonably interfere with the satisfaction ongoing operations of the applicable Financing Sources. Assuming Company and its Subsidiaries), including (i) the accuracy of the representations participation in meetings, drafting sessions and warranties set forth in Article IIIdue diligence sessions, (ii) the performance by furnishing Parent and its financing sources with financial and other pertinent information regarding the Company as may be reasonably requested by Parent of a type and its Subsidiaries of form customarily included in private placements pursuant to Rule 144A under the covenants contained in this Agreement and Securities Act, (iii) assisting Parent and its financing sources in the conditions set forth preparation of (A) an offering document for any debt raised to complete the Mergers and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts of Parent and its financing sources for any debt raised by Parent to complete the Mergers, (v) forming new direct or indirect Subsidiaries, and (vi) providing and executing documents as may be reasonably requested by Parent; provided that without the Company’s consent, in Article VII are satisfied at no event, whether in connection with the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing financings contemplated by the Financing Commitment applicable to it will Agreements or otherwise, shall any property-level due diligence involve environmental tests or assessments; provided, further that the foregoing shall not be satisfied on deemed to require the Charter Closing Date Company or that any Subsidiary of the Committed Financing will not be made available Company, prior to Parent on the Charter Closing DateEffective Time, to consummate any tender offer or consent solicitation with respect to, or enter into any supplemental indenture with respect to or otherwise amend the terms of any instruments governing, any existing outstanding Indebtedness of the Company or its Subsidiaries. Parent affirms that it is not a condition shall indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives for and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them prior to the Charter ClosingEffective Time in connection with the arrangement of the Financing and any information utilized in connection therewith (other than historical information relating to the Company or the Company Subsidiaries and information provided by the Company, the Merger Closing and Company Subsidiaries or the Pre-Closing Dividend or any Company Representatives) (it being agreed that this sentence shall survive termination of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Morgan Stanley), Agreement and Plan of Merger (Gramercy Capital Corp)
Financing. Parent On the Closing Date, Buyer will have sufficient cash, available lines of credit or other sources of immediately available funds to make the Closing Payments. Buyer has made available delivered to the Company a Seller true, complete complete, and correct copy copies of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) Debt Commitment Letters and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, each such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Debt Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect as of the date hereof and is the legal, represents a valid, binding and enforceable obligations obligation of Parent or its applicable Affiliate Buyer and, to the knowledge of Buyer, each other party thereto, as applicable, to consummate the Debt Financing subject only to the satisfaction or waiver of the Financing Conditions and to the Knowledge of Parent, each Enforceability Limitations. Subject only to the satisfaction or waiver of the other parties theretoFinancing Conditions, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion proceeds of the court before which Debt Financing, together with available cash, will be sufficient to consummate the Transactions, including the making of all Closing Payments on the Closing Date. Buyer has no reason to believe that it or any proceeding therefor may other party thereto will be broughtunable to satisfy on a timely basis any term of the Debt Commitment Letters. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) assuming the accuracy of the representations and warranties set forth in Article III, 3 (ii) to the performance extent required by the Company definitive agreements governing the Debt Financing) and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII Section 6.1 are satisfied at the Charter Closing DateClosing, as of the date hereof, Parent Buyer has no reason to believe that (i) any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it Conditions will not be satisfied on or (ii) the Charter Closing Date or that the Committed Debt Financing will not be made available to Parent Buyer on the Charter Closing Date. Parent affirms Buyer acknowledges and agrees that it under the terms of this Agreement, Buyer’s obligation to consummate the Closing is not a condition in any way contingent upon or otherwise subject to Buyer’s consummation of any financing arrangements, Buyer’s obtaining of any financing or the Charter Closingavailability, the Merger Closing and the Pre-Closing Dividend grant, provision or extension of any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsBuyer.
Appears in 2 contracts
Samples: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Financing. Parent Buyer has made available to the Company a true, complete and correct copy of obtained: (i) a debt financing commitment letter (together with copies of any provisions relating to “market flex” or similar provisions affecting the executed structure, pricing, maturity, amortization or any other terms with respect to the financing contemplated by such debt financing commitment letter), dated March 26as of the date hereof, 2018by and among Jefferies Finance LLC (“Jefferies”), Bank of Montreal (“BMO”), KeyBank National Association (“KeyBank”), CHS V and Buyer, pursuant to which each of Jefferies, BMO and KeyBank has committed to provide or cause to be provided debt financing to Buyer (which includes up to $200,000,000 in bridge financing to be utilized in the event that the issuance and sale of senior secured second lien notes in a comparable amount is not consummated at or prior to the Closing) (the “Bridge Loans”) in connection with the transaction contemplated hereby, a complete and accurate fully executed copy of which is attached hereto as Exhibit E (the “Bridge Loans Commitment Letter”); (ii) a debt financing commitment letter (together with copies of any provisions relating to “market flex” or similar provisions affecting the structure, pricing, maturity, amortization or any other terms with respect to the financing contemplated by such debt financing commitment letter), dated as of the date hereof, by and among Parent General Electric Capital Corporation (or its applicable Affiliate) and the financial institutions party thereto “GE Capital”), GE Canada Finance, Buyer, BMO, Key Bank (including all exhibits, schedules and annexes thereto, collectivelytogether, the “Financing CommitmentRevolver Lenders”)) and Buyer, pursuant to which the lenders party thereto Revolver Lenders have committedcommitted to provide or cause to be provided debt financing to Buyer (which includes up to $40,000,000 in a senior secured credit facility of which up to Cdn $20,000,000 may be available to a Canadian borrower) (the “Revolver Loans”), a complete and accurate fully executed copy of which is attached hereto as Exhibit F (the “Revolver Commitment Letter” and together with the Bridge Loans Commitment Letter, the “Debt Commitment Letters”); and (iii) an equity financing commitment letter, dated as of the date hereof, pursuant to which CHS V has, among other things, and subject to the terms and conditions thereinthereof, committed to lend provide equity financing to Buyer in connection with the amounts set forth therein transactions contemplated hereby, a complete and accurate fully executed copy of which is attached hereto as Exhibit G (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Equity Commitment Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Debt Commitment Papers have not been amended or modified prior Letters and Equity Commitment Letter shall together be referred to herein as the “Commitment Letters”. Subject to the date of this Agreement and as conditions expressly set forth therein, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letters provide all funds necessary (a) to consummate the transactions contemplated hereby, including the payment of the date Purchase Price, the deposit of this Agreement the Escrow Amount, the payoff of the Company Senior Debt Payoff Amount and Indebtedness identified on the Indebtedness Pay-Off Schedule and the payment of the unpaid Seller Transaction Expenses in accordance with the final invoices delivered pursuant to Section 2.02(i)(iv), and (b) to pay all fees and expenses of Buyer at the time of the Closing. The Debt Commitment Letters (together with the ancillary documents referenced therein or delivered to the Company’s counsel) constitute all of the agreements entered into between Jefferies, BMO, KeyBank, GE Capital, GE Canada Finance and/or their respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts Affiliates and market flex provisions Buyer and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) its Affiliates with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there financing arrangements contemplated thereby. The Commitment Letters are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be not subject to the Enforceability Limitations and (y) the remedy any contingency or condition of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent kind whatsoever related to the funding of the full amount of the Committed Financingfinancing contemplated by the Commitment Letters (including any “market flex” provisions or similar provisions affecting the structure, pricing, maturity, amortization or any other terms) other than as expressly set forth in the Financing executed copies thereof (and in the copy of the “market flex” provision or similar provisions affecting the structure, pricing, maturity, amortization or any other terms excerpted from any related fee letter) attached hereto. The Commitment Papers delivered Letters are in full force and effect, constitute the legal, valid and binding obligations of Buyer and, to the Company on knowledge of Buyer, the other parties thereto, and have not been modified or prior to amended in any respect, and the date hereofrespective commitments contained in the Commitment Letters have not been withdrawn or rescinded. Neither Buyer nor any of its Affiliates is in breach of any of the Commitment Letters nor do Buyer or any of its Affiliates have knowledge of any breach of the Commitment Letters by any of the other parties thereto. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed FinancingBuyer’s knowledge, on the part of Parent or, to the Knowledge of Parent, (x) neither Buyer nor any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than to any such default, breach or failure that has been waived by the lenders or otherwise cured in Commitment Letter will be unable to satisfy on a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that basis any of the conditions that are required to be satisfied by it or such other party as a condition to the availability obligations under the Commitment Letters prior to the expiration thereof and (y) no portion of the Committed Financing financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing Letters will not be made available to Parent Buyer at the Closing. Buyer has paid in full any and all commitment fees and/or other fees required to be paid on the Charter Closing Date. Parent affirms that it is not a condition or prior to the Charter date hereof under the terms of the Commitment Letters and will pay all other commitment fees and/or other fees required to be paid under the terms of the Commitment Letters upon the Closing, . Buyer will not use any portion of the Merger Closing and Cdn $20,000,000 of the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related Revolver Loans to repay any of the TransactionsCompany Senior Debt.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Thermon Holding Corp.)
Financing. Parent The Company has made available to the Company a true, complete and correct copy received copies of (ia) the executed a commitment letterletter dated January 20, dated March 261998 from DLJ Merchant Banking Partners II, 2018L.P., among Parent (or its applicable Affiliate) DLJ Merchant Banking Partners II - A, L.P., DLJ Offshore Partners II, C.V., XXX Xxxxxxxxxxx Xxxxxxxx, X.X., XXX Xxxersified Partners - A, L.P., DLJ Millennium Partners, L.P., DLJ Millennium Partners - A, L.P., DLJMB Funding II, Inc., UK Investment Plan 1997 Partners, DLJ EAB Partners, L.P., DLJ ESC II, L.P. and the financial institutions party thereto (including all exhibitsDLJ First ESC, schedules and annexes thereto, collectively, the “Financing Commitment”), L.P. pursuant to which each of the lenders party thereto have foregoing has committed, subject to the terms and conditions set forth therein, to lend purchase securities of MergerSub for an aggregate amount equal to $140,000,012, (b) a letter dated January 20, 1998 from DLJ Bridge Fund Inc. ("DLJ BRIDGE FUND") pursuant to which DLJ Bridge Fund has committed, subject to the amounts terms and conditions set forth therein therein, to purchase Senior Subordinated Notes of a newly-formed Delaware corporation ("OPERATING CO.") in the “Committed Financing”amount of $205,000,000 and Senior PIK Notes of MergerSub in the amount of $95,000,000 and (c) a commitment letter dated January 20, 1998 from DLJ Capital Funding, Inc. ("DLJ SENIOR DEBT FUND") pursuant to which DLJ Senior Debt Fund has committed, subject to the terms and conditions set forth therein, to enter into one or more credit agreements providing for loans to Operating Co. of up to $430,000,000. As used in this Agreement, the purposes ofaforementioned entities shall hereinafter be referred to as the "FINANCING ENTITIES." The aforementioned credit agreements and commitments to purchase debt and equity securities of MergerSub or Operating Co. shall be referred to as the "FINANCING AGREEMENTS" and the financing to be provided thereunder shall be referred to as the "FINANCING." The aggregate proceeds of the Financing are in an amount sufficient to pay the Merger Consideration, among other thingsto repay the Company's and its Subsidiaries' indebtedness (excluding certain capital lease obligations) together with any interest, funding the Transactions premium or penalties payable in connection therewith, to provide a reasonable amount of working capital financing and to pay related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedcollectively, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”"REQUIRED AMOUNTS"). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related none of the commitment letters relating to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered Agreements referred to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that above has been waived by the lenders withdrawn and MergerSub does not know of any facts or otherwise cured circumstances that may reasonably be expected to result in a timely manner by Parent (or its Affiliate) to the satisfaction any of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as commitment letters relating to the Financing Agreements not being satisfied. MergerSub believes that the Financing will not create any liability to the directors and stockholders of the date hereofCompany under any federal or state fraudulent conveyance or transfer law. MergerSub further believes that, Parent has no reason to believe that any upon the consummation of the conditions to transactions contemplated hereby, including, without limitation, the availability of Financing, the Committed Financing contemplated by the Financing Commitment applicable to it Surviving Corporation (i) will not become insolvent, (ii) will not be satisfied on the Charter Closing Date or that the Committed Financing left with unreasonably small capital, (iii) will not be made available have incurred debts beyond its ability to Parent on pay such debts as they mature, and (iv) the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any capital of the Transactions.Company will not become impaired. As
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Thermadyne Holdings Corp /De), Agreement and Plan of Merger (Thermadyne Holdings Corp /De)
Financing. Parent Purchaser has made available delivered to Seller true and complete, fully-executed copies of the Company a true, complete debt and correct copy of (i) the executed equity commitment letterletters, dated March 26as of October 3, 20182013 among Purchaser; Citigroup Global Markets Inc., among Parent (or its applicable Affiliate) Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or any of their affiliates; Bank of America, N.A.; Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated; Barclays Bank PLC; Xxxxxx Xxxxxxx Senior Funding, Inc.; and the financial institutions party thereto (Natixis, New York Branch and including all exhibits, schedules schedules, annexes and annexes thereto, collectively, amendments to such agreements in effect as of the date hereof (the “Financing CommitmentCommitment Letters”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions thereinthereof each of the parties thereto (other than Purchaser), has severally agreed and committed to lend provide the amounts debt financing set forth therein (the “Committed Debt Financing”) for and Purchaser has received a commitment in respect of the purposes of, among other things, funding the Transactions equity financing set forth therein (“Equity Financing,” and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing CommitmentDebt Financing, collectively the “Financing Commitment PapersFinancing”). The Financing Commitment Papers Letters have not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement Execution Date and as of the date of this Agreement the respective commitments contained in the Financing Commitment Letters have not been withdrawn withdrawn, modified or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, the Commitment Letters are in full force and effect and constitute the legal, valid and binding obligation of each of Purchaser and the other parties thereto, except as such enforcement may be limited by laws affecting the enforcement of creditors’ rights generally or by general equitable principles. There are no conditions precedent to the funding of the full amount of the Financing, other than as expressly set forth in the Commitment Letters. There are no other agreements, side letters or arrangements that would permit the parties to the Commitment Letters to reduce the amount of the Financing or that would otherwise affect the availability of the Financing. The Commitment Letters provide Purchaser with binding financial commitments that, when funded at Closing, provide it with sufficient funds to pay the Final Purchase Price and to pay any other amounts required to be paid by it in connection with the consummation of the transactions contemplated by this Agreement. As of the date hereof, (A) no event has occurred which, that would constitute a breach or default (or an event that with notice or without notice, lapse of time or both, both would constitute a default or breachdefault), or failure to satisfy a condition precedent to the availability of the Committed Financingin each case, on the part of Parent Purchaser under the Commitment Letters or, to the Knowledge of ParentPurchaser, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement Commitment Letters and (iiiB) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent Purchaser has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent Purchaser on the Charter Closing Date. Parent affirms that it is not a condition Purchaser has fully paid all fees required to be paid prior to the Charter Closing, date hereof pursuant to the Merger Closing Commitment Letters and will pay any additional fees required to be paid pursuant to the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsCommitment Letters.
Appears in 2 contracts
Samples: Agreement, Agreement for Purchase and Sale (Forest Oil Corp)
Financing. Parent has made available (a) Buyer shall use commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Company a true, complete Debt Financing as promptly as practicable following the date hereof and correct copy of to consummate the Debt Financing on the Closing Date. Such actions shall include commercially reasonable efforts to: (i) maintain in effect the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and Debt Commitment Letters; (ii) satisfy on a timely basis all Financing Conditions; (iii) negotiate, execute and deliver definitive agreements and other documentation (“Debt Financing Documents”) that reflect the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments terms contained in the Financing Debt Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter Letters; and (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditionsiv) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment event that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by Section 6.1 and the Financing Conditions have been satisfied or, upon funding would be satisfied, cause the financing providers to fund the Debt Financing in an amount sufficient, together with available cash, to consummate the Transactions. Buyer shall give the Company prompt notice of any breach, repudiation, or threatened or anticipated breach or repudiation, by any party to a Debt Commitment applicable to it will not be satisfied on the Charter Closing Date Letter of which Buyer or that the Committed Financing will not be made available to Parent on the Charter Closing Dateits Affiliates becomes aware. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its Without limiting Buyer’s other obligations under this Agreement Section 4.8(a), if a Financing Failure Event occurs Buyer shall (x) promptly notify Seller of such Financing Failure Event and the reasons therefor, (y) use commercially reasonable efforts to obtain alternative financing, in an amount sufficient, together with available cash, to consummate the Transactions, as promptly as practicable following the occurrence of such event, and (z) use commercially reasonable efforts to obtain, and when obtained, provide Seller with a copy of, a new financing commitment, subject only to financing conditions substantially comparable to the Financing Conditions, that Parent obtain provides for such alternative financing. Neither Buyer nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace a Debt Commitment Letter or any Debt Financing Document except for (a) substitutions and replacements pursuant to the Committed immediately preceding sentence or (b) if such amendment, modification, supplement, restatement, assignment, substitution or replacement is not reasonably likely to (x) impair or materially delay the funding of the Debt Financing or (y) impair or materially delay the Closing. Upon any other financing for such amendment, supplement, modification or related replacement of a Debt Commitment Letter or Debt Financing Document in accordance with this Section 4.8(a), the term “Debt Commitment Letter” shall include such “Debt Commitment Letter” as so amended, supplemented, modified or replaced. Notwithstanding anything herein to the contrary, in no event shall “commercially reasonable efforts” of Buyer under this Section 4.8 be deemed or construed to require Buyer to instigate or pursue litigation against any of the Transactions.Debt Financing Sources. For purposes of this Agreement, a “
Appears in 2 contracts
Samples: Purchase Agreement (Cree Inc), Purchase Agreement (Cree Inc)
Financing. Parent has made available delivered to the Company (a) a true, true and complete and correct copy of an executed written commitment from the lender to the borrower thereunder (i) as the executed commitment letter, dated March 26, 2018, among Parent (same may be amended or its applicable Affiliate) and modified from time to time after the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelydate hereof in accordance with Section 7.12(b), the “Debt Financing Commitment”), pursuant to which the lenders lender party thereto have committedhas agreed, subject only to the terms and conditions set forth therein, to lend provide or cause to be provided to Holdco and the Company debt financing in the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding of financing the Transactions and related fees and expenses and the other purposes set forth therein (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee LetterDebt Financing”) and (b) a true and complete copy of the Investment Agreement, providing for an equity investment in Parent for the purposes of financing the Transactions and related fees and expenses (the “Equity Financing” and, together with the Financing CommitmentDebt Financing, the “Financing Commitment PapersFinancing”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement Agreement, the respective commitments contained in the Debt Financing Commitment have has not been amended or modified, the Debt Financing Commitment has not been withdrawn or rescinded rescinded, the lender has not indicated in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, writing that the market flex provisions in such Fee Letter may it will not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect proceed according to the availability terms of the Committed Debt Financing or any reduction Commitment and the Investors have not indicated in writing that they will not proceed according to the amount terms of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofInvestment Agreement. Parent has fully paid or caused to be paid any and all commitment fees or other fees in connection with the Debt Financing Commitment and Equity Financing that are required to be paid by it on or before the date of this Agreement in connection with the Financing Commitment that are payable on therewith or prior to the date hereofpursuant thereto, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Debt Financing Commitment Papers is and the Investment Agreement are in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtin accordance with their terms. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Debt Financing Commitment Papers delivered to and the Company on or prior to the date hereofInvestment Agreement. As of the date hereof, no No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent orParent, Infiniti, Holdco or Merger Sub under the Debt Financing Commitment or the Investment Agreement. Subject to the Knowledge terms and conditions of Parentthe Debt Financing Commitment and the Investment Agreement, any other party thereto under the Financing Commitment, in each case, under and subject to the terms and conditions of this Agreement, the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing aggregate proceeds contemplated by the Debt Financing Commitment applicable and the Investment Agreement, together with the cash on hand of Infiniti and the Company at the Effective Time, will be sufficient to it will not pay the aggregate Cash Consideration and any other amounts required to be satisfied on paid in connection with the Charter Closing Date or that consummation of the Committed Financing will not be made available Transactions and to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closingpay all related fees and expenses (collectively, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions“Required Payments”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Id Systems Inc), Agreement and Plan of Merger (Pointer Telocation LTD)
Financing. Parent Purchaser has made available provided to the Company Seller a true, complete and correct copy of (i) executed and binding commitment letters dated as of the date hereof (in each case, as the same may be amended or replaced in accordance with Section 5.11(a) and including any executed commitment letterletter or similar agreement for alternate financing, dated March 26in each case, 2018in accordance with Section 5.11(a), among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentDebt Commitment Letters”), pursuant relating to which the lenders party thereto have committedcommitment of the Debt Financing Sources to provide, or cause to be provided, and subject to the terms and conditions thereof, the amount of the debt financing stated therein (collectively, the “Debt Financing”), and (ii) an executed and binding commitment letter dated as of the date hereof (the “Equity Commitment Letter” and, together with the Debt Commitment Letters, the “Commitment Letters”) from AP Gaming Holdco, Inc. (the “Equity Investor”), relating to the commitment of the Equity Investor, subject to the terms and conditions thereinthereof, to lend invest, directly or indirectly, in Purchaser the amounts set forth amount of the cash equity financing stated therein (the “Committed Equity Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing CommitmentDebt Financing, the “Financing Commitment PapersFinancing”). The Financing Commitment Papers have not Letters are valid, binding and enforceable against the applicable Purchaser Entity and, to the knowledge of Purchaser, each of the other parties thereto, in accordance with their respective terms, except as such enforceability may be (1) limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general application relating to or affecting creditors’ rights generally and (2) subject to general equitable principles (whether considered in a proceeding in equity or at law). None of the Commitment Letters has been amended or modified prior to the date of this Agreement and Agreement, and, as of the date of this Agreement hereof, the respective commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any respect. Except for There are no conditions precedent to the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that obligations of the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (Debt Financing Sources or the modification or expansion of any existing conditions) with respect Equity Investor to provide the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in or contemplated by the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtLetters. As of the date hereofof this Agreement, there are no conditions precedent related assuming the accuracy of the representations and warranties of Seller in Article III and subject to the funding satisfaction of the full amount of the Committed Financing, other than as expressly set forth conditions contained in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofSection 6.1 and Section 6.2 and Seller’s compliance with its obligations under this Agreement, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent orthe applicable Purchaser Entities, and to the Knowledge knowledge of ParentPurchaser, any other party thereto under the Financing Commitment, in each caseparties thereto, under the terms Commitment Letters. Purchaser will provide to Seller any amendments to the Commitment Letters as promptly as possible after execution and delivery thereof. Other than as expressly set forth in the Commitment Letters, there are no agreements, side letters, arrangements or understandings (including any fee letters associated with the Debt Financing) that would, or would reasonably be expected to, (A) impair the enforceability of the Committed Commitment Letters, (B) reduce the aggregate amount of the Financing required to fund the Required Payment Amount, (C) impose new or additional conditions precedent to the Financing, other than or (D) otherwise adversely expand, amend or modify any such defaultof the conditions precedent to the Financing, breach or failure that has been waived by the lenders or otherwise cured expand, amend or modify any other provision of the Commitment Letters, in the case of clauses (C) and (D), in a timely manner by Parent (that would reasonably be expected to prevent or its Affiliate) materially delay the ability of Purchaser to consummate the satisfaction Closing. As of the applicable Financing Sources. Assuming (i) date of this Agreement, assuming the accuracy of the representations and warranties set forth of Seller in Article III, (ii) III and subject to the performance by the Company and its Subsidiaries satisfaction of the covenants conditions contained in Section 6.1 and Section 6.2 and Seller’s compliance with its obligations under this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing DateAgreement, as of the date hereof, Parent has no Purchaser does not have any reason to believe that any of the conditions precedent to the availability of Financing set forth in the Committed Financing contemplated by the Financing Commitment applicable to it Letters will not be satisfied on the Charter Closing Date or that the Committed Financing aggregate proceeds from the Financing, together with any available cash of Purchaser or the Genesis Companies, will not be made available to Parent on constitute all the Charter Closing Date. Parent affirms that it is not a condition to funds necessary for the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any satisfaction of its other all of Purchaser’s obligations under this Agreement that Parent obtain and the Committed Financing or any other financing for or related to any payment of the TransactionsCash Consideration (the “Required Payment Amount”) on the Closing Date (provided, that Purchaser makes no representation regarding the satisfaction of conditions to the extent relating to Seller or the Company). The applicable Purchaser Entity has fully paid or caused to be fully paid all commitment fees or other fees that are required pursuant to the Commitment Letters to be paid prior to the date of this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Amaya Inc.), Stock Purchase Agreement (AP Gaming Holdco, Inc.)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the an executed commitment letter from each of Xxxxxx X. Xxx Equity Fund VI, L.P., Xxxxxx X. Xxx Parallel Fund VI, L.P. and Xxxxxx X. Xxx Parallel (DT) Fund VI, L.P. (collectively, “THL”) (such commitment letter together with the Stock Purchase Agreement (as defined in such commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelyother agreements contemplated by such commitment letter or the Stock Purchase Agreement, the “Initial Equity Financing CommitmentLetter”) to make an equity investment in Black Knight Financial Services, Inc., a Subsidiary of Parent and the parent company of Sub (“NewCo”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, in cash in the aggregate amount set forth therein (the “Initial Equity Financing”), and (ii) an executed commitment letter and Redacted Fee Letter from the financial institutions identified therein (collectively, the “Initial Debt Financing Commitment” and, together with the Initial Equity Financing Commitments, the “Initial Financing Commitments”) to lend provide, subject to the terms and conditions therein, debt financing in the amounts set forth therein (being collectively referred to as the “Committed Initial Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing CommitmentInitial Equity Financing, collectively referred to as the “Financing Commitment PapersInitial Financing”). The For purposes of this Section 3.02(g), in the event that Parent obtains Additional Financing Commitments, the representations and warranties set forth in this Section 3.02(g) shall be deemed to be made with respect to both the Initial Financing Commitments and the Additional Financing Commitments; provided that with respect to the Additional Financing Commitments and the Additional Financing, references to the “date of this Agreement” or the “date hereof” shall be deemed to be references to the “date of the Adjustment Notice”. As of the date hereof, neither of the Equity Financing Commitments nor the Debt Financing Commitment Papers have not has been amended or modified prior to the date of this Agreement modified, no such amendment or modification is contemplated (other than amendments or modifications permitted by Section 5.09(a)), and as none of the date of this Agreement the respective obligations and commitments contained in the Financing Commitment such letters have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (Parent or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent Sub has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment Commitments that are payable on or prior to the date hereofof this Agreement. Assuming (A) the Financing is funded in accordance with the Financing Commitments, (B) the accuracy in all material respects of the representations and warranties set forth in Section 3.01(c) as of the date hereof and (C) compliance in all material respects by the Company with its covenants and agreements under Section 4.01(a), the net proceeds contemplated by the Financing Commitments, together with Parent willand Company cash on hand, directly or indirectlywill in the aggregate be sufficient for Parent, continue Sub and the Surviving Corporation to pay the aggregate Cash Consideration, all requisite payments of cash in full lieu of fractional shares pursuant to Section 2.02(i), all requisite payments of dividends or other distributions pursuant to Section 2.01(c) and/or Section 2.02(j), Restricted Stock Consideration, Option Payments, payments in respect of the Designated Matching Contributions and the Retention Incentive Award Consideration (and any such repayment or refinancing of debt required as a result of the Transactions) and any other amounts required to be paid as in connection with the consummation of the Transactions and when they become due to pay all related fees and payable on or prior to expenses of Parent, Sub and the Charter Surviving Corporation (collectively, the “Required Closing Date and as Cash Payments”) . As of the date hereof, each of the Debt Financing Commitment Papers is in full force and effect and is (x) the legal, valid, valid and binding and enforceable obligations of Parent or its applicable Affiliate party theretoand Sub, as applicable, and and, to the Knowledge of ParentParent and Sub, each of the other parties thereto, except that (y) enforceable in accordance with their respective terms against Parent and Sub, as applicable, and, to the Knowledge of Parent and Sub, each of the other parties thereto, subject, as to enforceability, to bankruptcy, insolvency and other Laws of general applicability relating to or affecting creditors' rights and to general equity principles and (z) in full force and effect. The Equity Financing Commitment is (x) enforceability may be subject to the Enforceability Limitations legal, valid and binding obligation of Parent and Sub and each of the other parties thereto, (y) enforceable in accordance with its terms against the remedy of specific performance and injunctive parties thereto, subject, as to enforceability, to bankruptcy, insolvency and other forms Laws of equitable relief may be subject general applicability relating to equitable defenses or affecting creditors' rights and to the discretion of the court before which any proceeding therefor may be broughtgeneral equity principles and (z) in full force and effect. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Sub or, to the Knowledge of Parent, any other party parties thereto under the Financing Commitment, Commitments; provided that Parent is not making any representation or warranty regarding the effect of (A) any inaccuracy in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, III hereof or (iiB) the performance failure by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Dateto comply with any covenant or agreement herein, as applicable. No event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Sub or any other parties thereto under the Equity Financing Commitment. As of the date hereofof this Agreement, assuming satisfaction or (to the extent permitted by Law) waiver of the conditions to Parent's and Sub's obligation to consummate the Merger neither Parent has no nor Sub have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent or Sub on the Charter Closing Date. Parent affirms that it is not a condition There are no conditions precedent or other contingencies related to the Charter Closingfunding of the full amount of the Financing, other than as expressly set forth in the Merger Closing and Financing Commitments. As of the Pre-Closing Dividend date of this Agreement, there are no Contracts or other agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) to which Parent or any of its Affiliates is a party related to the Financing other obligations under this Agreement that than as expressly contained in the Financing Commitments and delivered to the Company prior to the date hereof. Other than the Initial Equity Financing Letter and, if applicable, the Additional Financing Commitments, there are no Contracts or other agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) between Parent obtain the Committed Financing or any other financing for of its Affiliates, on the one hand, and THL or related to any of its Affiliates, on the Transactionsother hand, which (A) contains additional or adversely modified conditions or other contingencies to the availability of the Equity Financing relative to those contained in the Equity Financing Commitments, (B) would otherwise reasonably be expected to prevent or materially impair or delay the funding of the Equity Financing (or satisfaction of the conditions to the Equity Financing) on the Closing Date or the Closing, (C) adversely impacts the ability of Parent or Sub to enforce its rights against the other parties to the Equity Financing Commitments or (D) reduces the aggregate amount of the Equity Financing set forth in the Equity Financing Commitments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fidelity National Financial, Inc.), Agreement and Plan of Merger (Fidelity National Financial, Inc.)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (ia) the an executed commitment letterletter from Mxxxxx Sxxxxxx Asset Funding, dated March 26, 2018, among Inc. to invest in preferred equity of Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts in an aggregate amount set forth therein (the “Committed FinancingParent Preferred Equity Funding Letter”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (iib) the an executed fee commitment letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Parent Commitment Letter”) from Mxxxxx Sxxxxxx Mortgage Capital Inc. to provide debt financing in an aggregate amount set forth therein (the “Parent Debt Financing,” and, and together with the Financing Commitment, financing referred to in clause (a) being collectively referred to as the “Financing Commitment PapersParent Financing”). The Financing None of the Parent Preferred Equity Funding Letter or the Parent Commitment Papers have not Letter has been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment such letters have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Parent Preferred Equity Funding Letter and the Parent Commitment Letter that are payable on or prior to the date hereof, and the Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as Preferred Equity Funding Letter and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Parent Commitment Papers is Letter are in full force and effect and is are the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent related to the funding of the full amount of the Committed Parent Financing, other than as expressly set forth in or expressly contemplated by the Financing Parent Preferred Equity Funding Letter or the Parent Commitment Papers delivered Letter. The aggregate proceeds contemplated by the Parent Preferred Equity Funding Letter and the Parent Commitment Letter, together with the amounts funded by the other equity owners of Parent, will be sufficient for Sub to pay the Company on or prior aggregate Per Share Merger Consideration and for Missouri to pay the date hereofpurchase price for the Parent Asset Sale and for each of them to pay all related fees and expenses. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto Sub or Missouri under the Financing Commitment, in each case, under Parent Preferred Equity Funding Letter and the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing DateCommitment Letter and, as of the date hereofof this Agreement, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Parent Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Parent Financing will not be made available to Parent on Sub at the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CNL Hotels & Resorts, Inc.), Agreement and Plan of Merger (Ashford Hospitality Trust Inc)
Financing. Parent has made available to obtained a commitment letter (the Company "Commitment Letter") (a true, complete and correct executed copy of which has been delivered to Company) from UBS AG, Stamford Branch; UBS Warburg LLC; Credit Suisse First Boston, Cayman Islands Branch; Canadian Imperial Bank of Commerce; and CIBC World Markets Corp. (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), "Lender") pursuant to which the lenders party thereto have committedLender has agreed to provide Parent and Merger Sub, subject to the terms and conditions therein, to lend the amounts set forth therein in the Commitment Letter and the market-flex provisions set forth in the fee letter referred to in the Commitment Letter and no other conditions, funds that, together with the Equity Commitment (as defined in this Section 4.2(e)) and cash on-hand of Company at the “Committed Financing”Effective Time (in such amount as contemplated by the Commitment Letter), would enable Parent and Merger Sub to timely perform their obligations to (i) for pay in full (A) the purposes ofaggregate Offer Consideration, among other things(B) the aggregate Merger Consideration, funding (C) the Transactions aggregate Option Consideration, and related (D) all fees and expenses payable by Parent, Merger Sub and the Surviving Corporation in connection with this Agreement and the transactions contemplated by this Agreement and (ii) satisfy and discharge the executed fee letter associated therewith; provided, such fee letter may be redacted as described below aggregate principal amount of the Notes (as so redacted, the “Fee Letter” anddefined in Section 6.10), together with all accrued and unpaid interest and any required premium or prepayment penalty thereon, pursuant to the Financing CommitmentNotes Tender Offer (as defined in Section 6.10) as contemplated by Section 6.10 and the Commitment Letter (such aggregate debt financing to satisfy clauses (i) and (ii) obtained pursuant to the Commitment Letter or any alternate financing obtained by Parent from one or more other sources on terms reasonably satisfactory to Company, the “Financing Commitment Papers”"Transaction Financing"). The Financing Commitment Papers have Letter is in full force and effect and has not been amended amended. Parent and Merger Sub are not aware of any fact or modified occurrence that makes any of the assumptions set forth in the Commitment Letter unreasonable or would result in any of the conditions set forth in the Commitment Letter not being satisfied prior to the Outside Date. Lender has not advised either Parent or Merger Sub or any of their respective affiliates of any reason why the financing contemplated by the Commitment Letter will not be consummated in accordance with its terms. All commitment and other fees required to be paid pursuant to the Commitment Letter and the fee letter referred to therein on or prior to the date of this Agreement have been paid. The total equity financing to be provided to Parent and as Merger Sub that is contemplated by the Commitment Letter (the "Equity Commitment") will consist of equity contributed to Parent by private equity funds managed by Harvest Partners, Inc. and investors in such private equity funds. As of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts Agreement, such private equity funds and market flex provisions such investors have, collectively, and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or at all times prior to the date hereof. Parent has fully paid any and all commitment fees or Effective Time, will have, collectively, funds readily available to them, subject to no conditions (other fees required to be paid by it than (1) advance notice requirements, (2) the conditions in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations favor of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly Merger Sub set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and Exhibit A to this Agreement and (iii3) the other non-material conditions set forth in Article VII are capable of being satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions prior to the availability of Offer Completion Date), to fund the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsEquity Commitment.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Associated Materials Inc), Agreement and Plan of Merger (AMH Holdings, Inc.)
Financing. (a) Parent has made available to provided the Company with a true, true and complete and correct (except as otherwise described below) copy of (i) the fully executed commitment letterletter (the “Financing Letter”), dated March 26as of the date hereof, 2018by and among the parties named therein (collectively, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all together with any exhibits, schedules schedules, annexes and annexes thereto, collectivelyamendments thereto in effect as of the date hereof, the “Financing CommitmentCommitments,” and the lenders party thereto, the “Financing Sources”), pursuant to which the lenders party thereto Financing Sources have committedagreed, subject to and on the terms and conditions set forth therein, to lend or otherwise provide the amounts principal amount of indebtedness set forth therein (the “Committed Financing”) for to the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” andparties specified therein to, together with the Financing Commitmentcash on hand at Parent, (i) finance the payment of the aggregate Merger Consideration, (ii) refinance (the “Financing Commitment PapersProposed Refinancing”). The Financing Commitment Papers have not been amended or modified prior to ) the date of this Agreement and as indebtedness of the date Company and its Subsidiaries listed on Schedule 4.04 (the “Scheduled Indebtedness”) and (iii) finance the payment of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts fees, expenses, accrued interest and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investingpremiums, as applicable, related to the provision of the Committed Financing or Financing, including the transactions contemplated hereby other Proposed Refinancing. Other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereofCommitments, there are no conditions precedent related side letters or other agreements, Contracts, understandings or arrangements relating to (or that could affect the availability of) the Financing to which Parent or Merger Sub or any of their Affiliates is a party (except for customary non-disclosure agreements, fee letters and engagement letters, true and complete copies of which fee letters have been provided to the funding Company, with fees, economic terms and other customary provisions redacted, none of which would adversely affect the aggregate amount, conditionality or availability of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition contain any conditions precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stewart Enterprises Inc), Agreement and Plan of Merger (Service Corporation International)
Financing. Parent has made available to the Company a true(a) Until such time, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; providedif applicable, that the market flex provisions in such Fee Commitment Letter may not permit the imposition is terminated pursuant to a Permitted Termination, Parent shall and shall cause each of any new conditions (or the modification or expansion of any existing conditions) with respect its Affiliates to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affecttake, or impose additional conditions uponcause to be taken, the aggregate amountall actions, enforceability and do, or availability of the Committed Financing)cause to be done, as of the date hereof there are no side letters all things necessary, proper or Contracts or any other arrangements or understandings advisable to which Parent is a party related obtain funds sufficient to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in fund the Financing Commitment Papers delivered to the Company Amounts on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees on which the Merger is required to be paid consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, Parent shall, unless the Commitment Letter is terminated pursuant to a Permitted Termination and until such time, take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain the proceeds of the Financing on the terms (including, as necessary, the “flex” provisions contained in any related fee letter) and subject only to the conditions described in the Commitment Letter prior to the date on which the Merger is required to be consummated pursuant to the terms hereof, including by it (i) maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and without any Prohibited Modification; provided that Parent will not be required to enter into the Definitive Agreements unless (x) the closing of the transactions, including the receipt of proceeds related thereto, contemplated by the Climate Transaction Agreement is not reasonably likely to occur prior to the Closing and (y) Parent does not have immediate access to alternative financing in an amount, when taken together with all immediately available funds of Parent on the Closing Date, sufficient to satisfy all of Parent’s obligations under this Agreement, including the payment of the Merger Consideration, any fees and expenses of or payable by Parent contemplated by, or required in connection with the Financing transactions described in, this Agreement and any repayment or refinancing of any outstanding indebtedness (including the Company Credit Agreement) of the Company and/or its Subsidiaries contemplated by, or required in connection with the transactions described in, this Agreement, (iii) satisfying on a timely basis all conditions in the Commitment that are payable on or prior Letter and the Definitive Agreements and complying with its obligations thereunder and (iv) enforcing its rights under the Commitment Letter. Parent shall comply with its obligations, and enforce its rights, under the Commitment Letter and Definitive Agreements in a timely and diligent manner. Additionally, unless the Commitment Letter is terminated pursuant to the date hereofa Permitted Termination, Parent willshall use its reasonable best efforts to consummate and obtain in escrow the proceeds of the Financing (or, directly in the case of any bridge facilities contemplated by the Commitment Letter, high yield financing or indirectly, continue to pay other financing incurred in full any such amounts required to be paid lieu thereof) as and when they become due and payable on or prior to promptly as possible after the Charter Closing Syndication Commencement Date and (as defined in the Commitment Letter as of the date hereof, each ) and receipt of the Financing Commitment Papers is in full force and effect and is Information; provided that Parent shall have no obligation to fund the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each bank debt portion of the other parties thereto, except that Financing into escrow so long as Parent has delivered executed Definitive Agreements (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent orincluding, to the Knowledge of Parentextent necessary, any other party thereto under Definitive Agreements for a bridge financing) and the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) funding thereof is subject only to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing DateCommitment Letter, as other than the delivery of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsdefinitive documentation.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (National Instruments Corp), Agreement and Plan of Merger (Emerson Electric Co)
Financing. Parent has made available delivered to the Company a true, complete and correct copy of (i) true, correct and complete copies of the executed bridge facility commitment letter (the “Bridge Commitment Letter”) and unsecured term loan facility commitment letter, each dated March 26as of February 5, 20182015 between Parent and Xxxxxx Xxxxxxx Senior Funding, among Parent Inc. (or its applicable Affiliate) and the financial institutions party thereto (including together with all exhibits, annexes, schedules and annexes attachments thereto, collectively, the “Financing CommitmentLetters”), pursuant to which the lenders party counterparties thereto have committed, subject to the terms and conditions thereinthereof, to lend to Parent, the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) true and correct (subject to the redactions noted therein) copies of the executed fee letter associated therewith; providedletters each, such fee letter may be redacted dated as described below of February 5, 2015 between Parent and Xxxxxx Xxxxxxx Senior Funding, Inc. (as so redacted, the “Fee Letter” andLetters”) related to the Financing. As of the date hereof, together with neither the Financing Commitment, Letters nor the “Financing Commitment Papers”). The Financing Commitment Papers Fee Letters have not been amended or modified prior to the date hereof and, to the knowledge of this Agreement and as of Parent, the date of this Agreement the respective commitments contained in the Financing Commitment Letters have not been withdrawn withdrawn, terminated or rescinded in any respect. If the conditions set forth in Section 8.2 have been satisfied or waived, at the Closing, the aggregate proceeds to be disbursed pursuant to the Financing, together with available cash, cash equivalents and marketable securities of Parent and Merger Sub, in the aggregate, will be sufficient to make the payment to the Exchange Agent of the aggregate Per Share Consideration, all other amounts required to be paid pursuant to Article IV and the other transactions contemplated by this Agreement. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing)Letters, as of the date hereof hereof, there are (i) no side letters or Contracts other agreements or any other arrangements or understandings to which Parent is a party contracts related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the applicable Financing Commitment Papers delivered Letters or (ii) no arrangements related to the Company on or prior to Financing that could adversely affect the date hereofavailability of the Financing. Parent has fully paid any and all commitment fees or other fees required by such Financing Letters to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, the Financing Letters are in full force and effect and are the valid, binding and enforceable obligations of Parent and, to the knowledge of Parent, the other parties to the Financing Letters, in each case subject to the Bankruptcy and Equity Exception. There are no conditions precedent or other contingencies relating to the funding of the full amount of the Financing or any provisions that could reduce the aggregate amount of the Financing other than as set forth in the Financing Letters and the Fee Letters. Assuming the accuracy of the representations and warranties of the Company contained in Section 5.5(e) (Company Reports; Financial Statements; Undisclosed Liabilities), (i) no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent orParent, or to the Knowledge knowledge of Parent, any other party thereto party, under the Financing Commitment, in each case, under Letters and the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations Fee Letters and warranties set forth in Article III, (ii) Parent reasonably believes that the performance conditions to the Financing contemplated in the Financing Letters and the Fee Letters to be satisfied by Parent or Merger Sub will be satisfied, at or prior to the time contemplated hereunder for the Closing; provided that no representation or warranty is being made as to whether any of the Company’s representations or warranties are true or correct or whether the Company and has complied with its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Harris Corp /De/), Agreement and Plan of Merger (Exelis Inc.)
Financing. (a) Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the executed commitment letterletter from UBS Securities LLC, dated March 26UBS Loan Finance LLC, 2018Credit Suisse Securities (USA) LLC and Credit Suisse AG, among Parent Cayman Islands Branch (collectively, the “Lender”), including any schedules, exhibits and annexes thereto and excerpts of the engagement letter associated therewith (the “Engagement Letter”) that contain any conditions to funding or its applicable Affiliate“flex” provisions, and a copy of the fee letter associated therewith (the “Fee Letter”) with only fee amounts and “flex” provisions redacted (the financial institutions party thereto (including all exhibitsFee Letter, schedules together with such commitment letter and any schedules, exhibits and annexes thereto, collectively, the “Financing CommitmentCommitment Letter”), pursuant to which the lenders party lender parties thereto have committedagreed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the debt amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter which may be redacted as described below include up to $200.0 million in bridge financing (as so redacted, the “Fee Letter” and, together Bridge Financing”) to be utilized in the event the placement of high yield securities in a comparable amount (the “High-Yield Financing”) is not consummated prior to or concurrently with the Financing Commitment, Closing). Parent represents and warrants that the Engagement Letter and the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date flex” provisions of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may do not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the Financing that would result in net cash proceeds less than the amount of that would be required to consummate the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as Merger. As of the date hereof there of this Agreement, the Commitment Letter has not been amended, restated or otherwise modified and neither Parent nor Merger Subsidiary has waived any provision thereof, and the commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded. As of the date of this Agreement, the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent or Merger Subsidiary and, to the knowledge of Parent, Lender (except to the extent that enforceability may be limited by the applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity). There are no side letters conditions precedent or Contracts or any other arrangements or understandings to which Parent is a party contingencies related to the funding or investing, as applicable, of the Committed full amount (including pursuant to any “flex” provisions in connection therewith) of the Financing or the transactions contemplated hereby other than as expressly set forth in the Commitment Letter. There are no side letters or other agreements, Contracts or arrangements that would (i) affect the availability of the Financing, (ii) reduce the aggregate amount of the Financing, (iii) delay or prevent the Closing or (iv) modify the terms of the Financing in any manner materially adverse to Parent or Merger Subsidiary. As of the date of this Agreement, no event has occurred that (with or without notice or lapse of time, or both) would or would reasonably be expected to constitute a breach or default under the Commitment Papers delivered Letter by Parent or Merger Subsidiary or, to the Company on or prior knowledge of Parent, any other party thereto under the Commitment Letter. As of the date of this Agreement, neither Parent nor Merger Subsidiary has any reason to believe that any of the conditions to the date hereofFinancing contemplated by the Commitment Letter will not be satisfied; provided that Parent and Merger Sub are not making any representation or warranty regarding the effect of any inaccuracy of the representations and warranties of the Company in this Agreement or the failure to of the Company to comply with any of its covenants in this Agreement. Parent or Merger Subsidiary has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach Commitment Letter to be paid on or failure that has been waived before the date of this Agreement. The aggregate proceeds contemplated by the lenders Commitment Letter, together with other financial resources of Parent and Merger Subsidiary including cash, cash equivalents and marketable securities of Parent, Merger Subsidiary, the Company and the Company’s Subsidiaries on the Closing Date, will be sufficient for Parent and Merger Subsidiary to consummate the Merger upon the terms contemplated by this Agreement and to pay all related fees and expenses; provided that Parent and Merger Sub are not making any representation or otherwise cured in a timely manner by Parent (or its Affiliate) to warranty regarding the satisfaction effect of the applicable Financing Sources. Assuming (i) the accuracy any inaccuracy of the representations and warranties set forth in Article III, (ii) the performance by of the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) or the conditions set forth in Article VII are satisfied at the Charter Closing Date, as failure to of the date hereof, Parent has no reason Company to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or comply with any of its other obligations under covenants in this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Labarge Inc), Agreement and Plan of Merger (Ducommun Inc /De/)
Financing. Parent has made available Buyer shall use commercially reasonable best efforts to cause the Company a true, complete and correct copy of (i) financing contemplated by the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committedCapital Plan, subject to the terms and conditions set forth therein, to lend be available at Closing including by (i) before August 14, 2014, delivering to Seller commercially acceptable commitment letters from lenders representing sufficient financing to fund the amounts set forth therein (full cash portion of the “Committed Financing”) for the purposes of, among other things, funding the Transactions Initial Purchase Price and any related fees and expenses and (the “Commitments”) (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together negotiating definitive agreements with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly lenders set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection Capital Plan consistent with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as terms and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement therein and (iii) satisfying on a timely basis all conditions in such definitive agreements the satisfaction of which are within the control of Buyer. Buyer shall use its reasonable best efforts to comply with its obligations, and enforce its rights, under the Commitments. Buyer shall give Seller prompt notice of any material breach by any party to the Commitments of which Buyer has become aware or any termination of such commitments. Buyer shall not, without the prior written consent of Seller, (x) permit any amendment or modification to, or any waiver of any material provision or remedy under, the Commitments if such amendment, modification, waiver or remedy adds new (or adversely modifies existing) conditions to the consummation of the financing represented thereby or reduces the amount thereof, or (y) terminate the Commitments, unless the financing represented thereby becomes unavailable and Buyer is using its reasonable best efforts to obtain Alternate Financing (as defined below). In the event that any portion of the Commitments becomes unavailable, regardless of the reason therefor, Buyer will (i) use its reasonable best efforts to obtain alternative financing (in an amount sufficient to pay the cash portion of the Initial Purchase Price) from other sources and which do not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in Article VII are satisfied at the Charter Closing DateCapital Plan (the “Alternate Financing”), as and (ii) promptly notify Seller of such unavailability and the date hereofreason therefor. Notwithstanding the foregoing, Parent has no reason compliance by Buyer with this Section 5.01 shall not relieve Buyer of its obligation to believe that any of consummate the conditions to the availability of the Committed Financing transactions contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain whether or not the Committed Financing or any other financing for or related to any of the Transactionsis available.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lithia Motors Inc), Stock Purchase Agreement (Lithia Motors Inc)
Financing. At the Closing, assuming the funding of the Debt Financing in accordance with the Debt Commitment Letter and after giving effect to any “flex” provision in the Debt Commitment Letter or the related fee letters (including with respect to fees and original issue discount), Parent will have immediately available funds in an amount as is necessary to consummate the Transactions, including the payment by Parent, Merger Sub and the Surviving Corporation of the aggregate amount of the Merger Consideration, other amounts payable pursuant to Article II (including all amounts payable in respect of Company Stock Options, Company Restricted Shares and Company RSUs under this Agreement), any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation and any other amounts, including Indebtedness of the Company and its Subsidiaries, required to be paid in connection with, or as a result of, the consummation of the Transactions (the “Required Amount”). As of the date hereof, Xxxxxx has made available delivered to the Company (a) a true, correct and complete and correct fully executed copy of (i) the executed debt commitment letter, dated March 26as of even date herewith, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules schedules, annexes and annexes theretoamendments to such letter in effect as of the date of this Agreement (as may be amended or modified in accordance with the terms hereof, collectivelythe “Debt Commitment Letter”) and (b) a copy of any fee letters related to the Debt Commitment Letter (the “Fee Letters” and, together with the Debt Commitment Letter, the “Financing CommitmentLetters”) (which may be redacted to remove the fee amounts, economic terms and the terms of any “flex” provisions that are customarily redacted in transactions of this type, none of which redactions covers terms that reduce the amount of the Debt Financing below the Required Amount or adversely affect the conditionality, enforceability, termination or availability of the Debt Financing). Pursuant to, pursuant to which the lenders party thereto have committed, and subject to the terms and conditions thereinof, the Debt Commitment Letter, the lender thereunder has committed to lend the amounts set forth therein for the purposes set forth in such Debt Commitment Letter (the “Committed Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing As of the date hereof, neither the Debt Commitment Papers have not Letter nor any Fee Letter has been amended amended, restated or otherwise modified or waived prior to the date execution and delivery of this Agreement Agreement, no amendment, restatement or other modification is contemplated and as of the date of this Agreement the respective commitments contained in the Financing Debt Commitment Letter have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect prior to the availability execution and delivery of this Agreement (in each case, other than to add lenders, financial institutions, lead arrangers, bookrunners, syndication agents or other similar entities in a manner contemplated by the Committed Financing or any reduction in the amount of the Committed FinancingDebt Commitment Letter), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as . As of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to of this Agreement, the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Debt Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers Letter is in full force and effect and is constitutes the legal, valid, valid and binding and enforceable obligations obligation of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be enforceable in accordance with its terms against Parent and, to the Knowledge of Parent, each of the other parties thereto, subject to the Enforceability Limitations Bankruptcy and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtEquity Exception. As of the date hereof, there There are no conditions precedent related to the funding of obligation to make the full amount of Debt Financing available to Parent pursuant to the Committed FinancingDebt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter. Assuming the satisfaction of the conditions set forth in Section 6.01 and 6.02, the net proceeds of the Debt Financing Commitment Papers delivered will, in the aggregate and together with any cash or other funds available to Parent and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Company on or prior Financing Letters, including after giving effect to the date hereofmaximum amount of any “flex” provisions) for the payment of the Required Amount. As of the date hereofof this Agreement, (i) no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach, breach or result in a failure to satisfy a condition precedent to the availability of the Committed Financingprecedent, in each case, on the part of Parent or, to the Knowledge of Parent, any other party parties thereto under the Financing Commitment, in each case, under the terms any term or condition of the Committed FinancingDebt Commitment Letter, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) assuming the performance by the Company and its Subsidiaries satisfaction or waiver of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at Section 6.01 and Section 6.02 and taking into account the Charter Closing Date, as of the date hereofMarketing Period, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Debt Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Debt Financing or any other funds necessary to pay the Required Amount will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition has fully paid (or caused to be paid) all commitment fees or other fees to the Charter Closingextent required to be paid on or prior to the date of this Agreement in connection with the Debt Financing. Except for the Fee Letters and customary engagement letters with respect to the Debt Financing (none of which reduces the amount of the Debt Financing below the Required Amount or adversely affects the conditionality, enforceability, termination or availability of the Merger Closing and Debt Financing), as of the Pre-Closing Dividend date hereof, there are no side letters or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter to which Parent or any of its Affiliates is a party, other obligations under this Agreement that Parent obtain than as expressly set forth in the Committed Financing or any other financing for or related to any of the TransactionsLetters.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Altra Industrial Motion Corp.), Agreement and Plan of Merger (Regal Rexnord Corp)
Financing. (a) Parent has made available to the Company received a true, complete and correct copy of (i) the executed commitment letter, dated March 26as of the date of this Agreement (the “Financing Letter”) from Banc of America Securities LLC, 2018Banc of America Bridge LLC, among Parent (or its applicable Affiliate) Bank of America, N.A. and the financial institutions party thereto Bank of Nova Scotia (collectively, the “Lenders”), relating to the financing (including all exhibits, schedules and annexes theretoamendments to the Financing Letter in effect as of the date of this Agreement) required to consummate the Merger and the other Transactions on the terms contemplated by this Agreement, collectivelyto refinance certain existing indebtedness of the Parent and the Company and to pay related fees and expenses, which Financing Letter includes terms and conditions for (i) a $1.950 billion senior secured credit facility (the “Senior Facility”) and (ii) a $750.0 million unsecured “bridge” loan facility (the “Bridge Facility”) (or Senior Notes as defined in the Financing CommitmentLetter (“Senior Notes”) in lieu thereof), pursuant . The Lenders have committed to which provide and arrange the lenders party thereto have committed, financing contemplated by the Financing Letter upon and subject to the terms and conditions therein, to lend in the amounts set forth therein Financing Letter (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Parent has provided the Company with true, complete and correct copies of the Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as Letter. As of the date of this Agreement the respective commitments contained in Agreement, (i) the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and effect, is the legal, a valid, binding and enforceable obligations obligation of Parent or its applicable Affiliate party thereto, as applicablethe Parent, and to the Knowledge of the Parent, each of the other parties thereto, except that (x) enforceability may be subject and has not been withdrawn or terminated or otherwise amended or modified in any respect without the prior written consent of the Company and no such amendment or modification is contemplated by Parent or Sub or, to the Enforceability Limitations Parent’s Knowledge, any other party thereto, and (yii) the remedy neither Parent nor Sub is in breach of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion any of the court before which any proceeding therefor may be brought. As of the date hereof, there are no terms or conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, therein and no event has occurred which, with or without notice, lapse of time or both, would could reasonably be expected to constitute a default or breach, breach or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by Financing Letter. Parent and Sub have paid any and all commitment fees or other fees in connection with the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII Financing Letter that are satisfied at the Charter Closing Date, as of payable on or prior to the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ashland Inc.), Agreement and Plan of Merger (Hercules Inc)
Financing. (a) After the date hereof the Parent has made available may add to or replace the Company a true, complete Existing Debt Financing Commitments with additional or replacement debt commitments (the “New Debt Financing Commitments,” and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelytogether with Existing Debt Financing Commitments, the “Debt Financing CommitmentCommitments”), pursuant to which the such lenders party thereto have committed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the amounts set forth therein (the “Committed New Debt Financing,” and together with the Existing Debt Financing, the “Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and or equity financing commitments (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee LetterNew Equity Financing Commitments,” and, and together with the Debt Financing CommitmentCommitments, the “Financing Commitment PapersCommitments”), pursuant to which such parties have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing,” and together with the Debt Financing, the “Financing”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and Parent shall as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), promptly as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered practicable deliver to the Company on or prior to true and complete copies of any commitment letters executed after the date hereof. Notwithstanding the foregoing, neither Parent has fully paid nor Purchaser shall agree to or permit any and all commitment fees replacement of, or amendment, supplement or other fees modification to be made to, or any waiver of any material provision or remedy under, the Financing Commitments if such replacement, amendment, supplement, modification, waiver or remedy, would result in the amount available thereunder, together with Parent’s available cash, cash equivalents, fully committed and available lines of credit and definitive financing commitments, being less than the aggregate amount that is required to be paid by it in connection with consummate the transactions contemplated hereby, adversely amends or expands the conditions to drawdown the Financing Commitment in any respect that are payable on would make such conditions materially less likely to be satisfied, that would reasonably be expected to delay the Purchase Time or prior the Effective Time, or is materially adverse to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as interests of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries taken as a whole prior to the Effective Time. Parent and Purchaser shall keep the Company reasonably apprised of material developments relating to the Financing. For the avoidance of doubt, failure to obtain all or any portion of the covenants contained Financing shall not in this Agreement and (iii) of itself relieve or alter the conditions set forth in Article VII are satisfied at obligations of Parent and Purchaser to consummate the Charter Closing Date, as of transactions contemplated hereby on the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing terms contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Superior Essex Inc), Agreement and Plan of Merger (LS Cable Ltd.)
Financing. Parent Buyer has made available delivered to Seller true and complete copies of the Company a true, complete and correct copy of executed (a) (i) the executed debt commitment letterletter and related Redacted Fee Letter, each dated March 26as of May 3, 20182019, among Parent between Xxxxxxxx Television Group, Inc., and JPMorgan Chase Bank, N.A., Deutsche Bank AG New York Branch, Royal Bank of Canada, and Bank of America, N.A. (or its applicable Affiliatetogether in each case with their designated affiliates) and the financial institutions party thereto (ii) debt commitment letter and related Redacted Fee Letter, each dated as of May 3, 2019, between Buyer and JPMorgan Chase Bank, N.A., Deutsche Bank AG New York Branch, Royal Bank of Canada, and Bank of America, N.A. (together in each case with their designated affiliates) (such agreements described in clauses (i) and (ii), collectively, including all exhibits, schedules schedules, annexes and annexes amendments thereto, collectivelyas may be modified pursuant to Section 6.05, the “Debt Financing CommitmentCommitments”), pursuant to which the lenders Financing Sources party thereto have committedagreed, subject to the terms and conditions thereinthereof, to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes ofpurpose of funding, among other thingsin part, funding the Transactions and related fees and expenses and (iib) equity commitment letter (and the executed fee letter associated therewith; providedrelated Redacted Fee Letter) with the equity financing source identified therein, in each case dated as of May 3, 2019 (such fee letter agreements, including all exhibits, schedules, annexes and amendments thereto, as may be redacted as described below (as so redactedmodified pursuant to Section 6.05, the “Fee LetterEquity Financing Commitment” and, together with the Debt Financing CommitmentCommitments, the “Financing Commitment PapersCommitments”). The , pursuant to which the Financing Commitment Papers Sources party thereto have not been amended or modified prior agreed, subject to the date of this Agreement terms and as of conditions thereof, to invest the date of this Agreement amounts set forth therein (the respective commitments contained in “Equity Financing”, and together with the Financing Commitment have not been withdrawn or rescinded in any respect. Except Debt Financing, the “Financing”) for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; providedpurpose of funding, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions uponpart, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party Transactions and related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereoffees and expenses. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as As of the date hereof, each of the Financing Commitment Papers Commitments, in the form so delivered, is in full force and effect and is the a legal, valid, valid and binding and enforceable obligations obligation of Parent Buyer or its applicable Affiliate Buyer’s Affiliates party thereto, as applicable, and to the Knowledge of ParentBuyer’s knowledge, each of the other parties thereto, except that as such enforceability may be limited by (x) enforceability may be subject bankruptcy, insolvency, reorganization, moratorium or other similar Laws affecting or relating to the Enforceability Limitations creditors’ rights generally and (y) the remedy availability of specific performance and injunctive relief and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtremedies. As of the date hereof, there are the Financing Commitments have not been amended, supplemented or otherwise modified in any respect, no conditions precedent related amendment, supplement or modification is contemplated in a manner that could reasonably be expected to affect the funding satisfaction of the full amount of the Committed Financing, other than as expressly conditions set forth in Article V and the Financing Commitment Papers delivered to the Company on financing commitments thereunder have not been withdrawn, terminated or prior to the date hereofrescinded in any respect. As of the date hereof, no No event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent Buyer or Buyer’s Affiliates party thereto, as applicable, or, to the Knowledge of ParentBuyer’s knowledge, any other party parties thereto under any term or condition of the Financing CommitmentCommitments, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to and assuming the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article IIIconditions precedent to Buyer’s obligations hereunder, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent Buyer has no reason to believe that it (or its Affiliates party thereto) will be unable to satisfy any term or condition of closing set forth in the Financing Commitments at or prior to Closing, or that any portion of the Financing to be made thereunder will otherwise not be available to Buyer or Buyer’s Affiliates party thereto, as applicable, to consummate the Transactions at the time required pursuant to this Agreement. Buyer has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Financing Commitments to be paid thereunder on or prior to the date of this Agreement. The Financing, when funded in accordance with the Financing Commitments, together with cash on hand or other sources of immediately available funds, will provide Buyer (directly or indirectly through its Affiliates party thereto) with funds sufficient to satisfy all of Buyer’s obligations under this Agreement, including the obligations under Article II, pay any other amounts required to be paid by Buyer in connection with the consummation of the Transactions and pay all related fees and expenses of Buyer. The obligations to make the Financing available to Buyer or Buyer’s Affiliates party thereto, as applicable, pursuant to the terms of the Financing Commitments are not subject to any conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitments (including, with respect to the Debt Financing, satisfaction of the Marketing Period and changes effected pursuant to the “market flex” provisions in the applicable Redacted Fee Letter). As of the date of this Agreement, there are no agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) to which Buyer or any of its Affiliates is a party related to the conditions Financing other than as expressly contained in the Financing Commitments and delivered to Seller prior to the date hereof (except for customary engagement letters or non-disclosure agreements which do not impact the availability of the Committed Financing contemplated by Financing). For the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that avoidance of doubt, it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent for Buyer or its Affiliates to obtain the Committed Financing or any other financing for or related to any of the Transactionsalternative financing.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Walt Disney Co), Equity Purchase Agreement (Sinclair Broadcast Group Inc)
Financing. Parent HTI Acquisition has made available delivered to Alleghany (i) true, correct and complete signed counterpart(s) of commitment letters (the "Equity Commitment Letters"), dated on or prior to the Company date hereof, whereby the parties thereto (the "Equity Investors") have agreed, subject to the terms and conditions set forth therein, to make or cause to be made in HTI Holding equity investments in cash in the aggregate amount of not less than $25,000,000 (the "Equity Commitment"); (ii) a true, correct and complete signed counterpart of a letter agreement by and correct copy of (i) the executed commitment letterbetween HTI Holding and HTI Acquisition, dated March 26on or prior to the date hereof, 2018whereby HTI Holding has agreed to contribute the entire Equity Commitment to HTI Acquisition (the "Contribution Letter"); and (iii) true, among Parent (correct and complete signed counterpart(s) of commitment letter(s), dated on or its applicable Affiliate) and prior to the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”)date hereof, pursuant to which the lenders party thereto have committedagreed, subject to the terms and conditions set forth therein, to lend provided or cause to be provided debt financing in connection with the amounts set forth therein transactions provided for herein and revolving credit to HTI Acquisition (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” "Commitment Letters" and, together with the Financing CommitmentEquity Commitment Letters and the Contribution Letter, the “Financing Commitment Papers”"Commitments"). The Financing Commitment Papers Commitments have not been amended or modified prior to in a manner that would be prohibited by the date last sentence of this Agreement Section 5.6 and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent orare, to the Knowledge of Parent, any other party thereto under the Financing CommitmentHTI Acquisition, in each case, under full force and effect. The Commitments are subject to no contingencies or conditions other than those set forth in the copies of the Commitments delivered to Alleghany. Subject to the terms and conditions of the Committed FinancingCommitments, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) and subject to the satisfaction terms and conditions of this Agreement, the applicable Financing SourcesCommitments would provide HTI Acquisition with acquisition financing at the Effective Time sufficient to consummate the Merger upon the terms contemplated by this Agreement (the "Acquisition Financing"). Assuming Nothing contained in this Agreement shall prohibit HTI Acquisition or the Equity Investors from entering into agreements relating to the financing or the operation of HTI Acquisition or the Surviving Equity, including adding other equity providers or operating partners; provided that (i) the accuracy aggregate amount of the representations Equity Commitment shall not be reduced in any way to less than $25,000,000 and warranties set forth in Article III, (ii) the performance by the Company HTI Acquisition shall have obtained any and its Subsidiaries all required consents of the covenants contained in this Agreement and (iii) lenders under the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsLetters.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Alleghany Corp /De), Agreement and Plan of Merger (Alleghany Corp /De)
Financing. Parent Acquisition has made available to received and executed commitment letters each dated July 2, 1998 (the Company a true"Commitment Letters"), complete and correct copy of from (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”)Xxxxxxx Xxxxx Capital Corporation, pursuant to which the lenders party thereto have it has committed, subject to the terms and conditions set forth therein, to lend provide Acquisition and certain existing or future subsidiaries of the amounts Company with up to $1.21 billion of financing under available senior secured credit facilities and $350.0 million in aggregate principal amount of financing in the form of an unsecured senior bridge loan, (ii) WCAS Capital Partners III, L.P., pursuant to which it has committed, subject to the terms and conditions set forth therein therein, to purchase $150.0 million in aggregate principal amount of subordinated notes of Acquisition and (iii) Welsh, Carson, Xxxxxxxx & Xxxxx VIII, L.P. ("WCAS") pursuant to which it has committed to provide to Acquisition $350.0 million in equity to consummate the Merger, pay the Merger Consideration and pay the related transaction expenses (the “Committed financings referred to in clauses (i), (ii) and (iii) above being collectively referred to as the "Financing”) for "). Such Financing is adequate to pay in full in cash at closing the purposes of, among other things, funding the Transactions and related Cash Merger Consideration together with all fees and expenses and (ii) the executed fee letter of Acquisition associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby hereby, and to make any other than as expressly set forth in payments necessary to consummate the Financing transactions contemplated hereby. True and complete copies of the Commitment Papers delivered Letters have been furnished to the Company on Company. Neither Acquisition, WCAS nor their affiliates will terminate, amend or modify in any respect the Commitment Letters in a manner which will adversely affect the probability that such financing will be actually funded, or the timing thereof, without prior to written consent of the date hereofCompany. Parent Acquisition or WCAS has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing such Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required Letters to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof (and will duly pay any such fees after the date hereof, each of the Financing ). The Commitment Papers is Letters are valid and in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, which (with or without notice, lapse of time or both, ) would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, WCAS or Acquisition thereunder or would adversely affect the probability that such financing will actually be funded. The $350.0 million equity investment of WCAS will be used solely to the Knowledge acquire common stock of Parent, any other party thereto under the Financing Commitment, in each case, under the terms Acquisition at a price of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions$43.50 per share.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Centennial Cellular Corp), Agreement and Plan of Merger (Century Communications Corp)
Financing. Parent has made available to provided the Company a true, true and complete and correct copy copies of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and letter from the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject parties named therein relating to the terms and conditions therein, debt financing to lend be provided in connection with the amounts set forth therein Transactions (the “Committed FinancingDebt Commitment Letter”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee commitment letter associated therewith; providedfrom Golden Gate Private Equity, such fee letter may Inc. relating to the equity financing to be redacted as described below provided in connection with the Transactions (as so redacted, the “Fee Equity Commitment Letter” and, together with the Financing CommitmentDebt Commitment Letter, the “Financing Commitment PapersLetters”). The Financing financings contemplated by the Commitment Papers have not been amended or modified prior Letters, together with the amounts required to be made available by the Company pursuant to Section 2.03, will provide sufficient funds to permit Merger Sub, subject to the date satisfaction of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new all relevant conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered Letters and in this Agreement, to satisfy its obligations under Section 2.03 hereof, in reliance on the representations and warranties of the Company on or prior to the date made in Section 3.03 hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it The Debt Commitment Letter, in connection with the Financing Commitment that are payable on or prior to the date hereofform so delivered, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the a legal, valid, valid and binding and enforceable obligations obligation of Parent or its applicable Affiliate party thereto, as applicableParent, and to the Knowledge knowledge of Parent, each of the other parties thereto, except subject to the qualification that (x) such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors and that equitable remedies, including specific performance, are discretionary and may not be ordered. The Equity Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of each of Parent and the other party thereto, subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief qualification that such enforceability may be subject limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors and that equitable defenses remedies, including specific performance, are discretionary and to the discretion of the court before which any proceeding therefor may not be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofordered. As of the date hereof, no event has occurred which, that with or without notice, lapse of time or both, would would, individually or in the aggregate, constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge or any of Parent, its affiliates under any other party thereto under the Financing Commitment, in each case, under the terms material term or condition of the Committed Financing, other than any such default, breach Debt Commitment Letter or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing SourcesEquity Commitment Letter. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as As of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be unable to satisfy, on a timely basis, any material term or condition of funding to be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that by it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement affiliates contained in the Debt Commitment Letter or Equity Commitment Letter, it being agreed, for the avoidance of doubt, that Parent obtain no representation or warranty is made with respect to any matter dependent upon the Committed Financing financial performance of, or otherwise involving, the Company or any other financing for of its subsidiaries. All commitment fees required to be paid under the Commitment Letters have been paid in full or related to any of the Transactionswill be duly paid in full when due.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Magellan Holdings, Inc.), Agreement and Plan of Merger (Datastream Systems Inc)
Financing. Parent has made available Buyer acknowledges that its obligation to consummate the transactions contemplated by this Agreement is not and will not be subject to the Company a receipt by Buyer of any financing or the consummation of any transaction other than the occurrence of the ABI Transaction Closing (and Buyer further acknowledges that it has no termination rights regarding such financing). As of the date of this Agreement, Buyer has delivered to ABI true, correct and complete and correct copy copies of (i) the executed commitment letterletter from the Financing Sources (including all exhibits, dated March 26schedules, 2018and annexes to each such letter as and to the extent delivered to ABI on or prior to the date of this Agreement, among Parent collectively, the “Original Commitment Letter”), a copy of which is attached hereto as Exhibit A, together with any related fee letters (provided that the existence or its applicable Affiliateamount of fees, “market flex” provisions, pricing terms and pricing caps set forth therein, none of which would reasonably be expected to adversely affect the availability of the Financing, or reduce the aggregate principal amount thereof, may be redacted in a customary manner), pursuant to which the counterparties thereto have committed to provide the financing described therein in connection with the transactions contemplated hereby. The Original Commitment Letter and any other commitment letter (including any replacement of the Original Commitment Letter) and the financial institutions party thereto (executed in accordance with Section 5.04, as replaced, amended, supplemented, modified or waived in accordance with Section 5.04, including all exhibits, schedules and annexes theretoto such letters, collectively, are hereinafter referred to together as the “Financing CommitmentCommitment Letter”), . The financing contemplated pursuant to which the lenders party thereto have committedCommitment Letter (including, subject for the avoidance of doubt, any debt, equity or securities offering contemplated thereby) is hereinafter referred to the terms and conditions therein, to lend the amounts set forth therein (as the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement Agreement, the respective commitments contained in the Financing Original Commitment have Letter has not been withdrawn withdrawn, terminated, rescinded, amended or rescinded otherwise modified in any respect. Except for There are no agreements, side letters or arrangements (a) to which Buyer or any of its Affiliates is a party relating to the Fee Letter Financing or (with only fee amounts b) between Buyer or any of its Affiliates, on the one hand, and market flex provisions and providers of debt or equity financing or any of their respective Affiliates, on the other customary threshold amounts redacted; providedhand, that have not been disclosed to ABI prior to the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to date hereof and that could affect the availability of the Committed Financing or any reduction in Financing. The Commitment Letter constitutes the amount legally valid and binding obligation of the Committed Financing)Buyer and each of its applicable Affiliates and, certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none knowledge of which adversely affectBuyer, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms, except to the extent that (x) such enforceability may be subject limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws relating to the Enforceability Limitations and or affecting creditors’ rights generally or by general equitable principles (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtwhether in equity or at law). As of the date hereof, there neither Buyer nor any of its Affiliates is in breach of any of the terms or conditions set forth in the Original Commitment Letter. As of the date hereof, no Financing Source has notified Buyer in writing of its intention to terminate the Original Commitment Letter or not to provide the Financing. There are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered Letter. The aggregate proceeds available to be disbursed as provided under the Company on or prior to Original Commitment Letter as of the date hereofhereof are sufficient to enable Buyer to pay in cash all amounts required to be paid by it in cash in connection with the transactions contemplated hereby. As of the date hereof, no event Buyer has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, paid in full any and all commitment and other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived fees required by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII Original Commitment Letter that are satisfied at the Charter Closing Date, due as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Copy Purchase Agreement (Molson Coors Brewing Co), Purchase Agreement (Anheuser-Busch InBev S.A.)
Financing. (a) On or prior to the date of this Agreement, Parent has made available delivered to the Company a true, complete and correct copy of (i) the fully executed debt commitment letter, together with any related fee letters (with only the fee amount, economic flex and certain other economic terms redacted in a customary manner (none of which could reasonably be expected to adversely affect conditionality, enforceability or termination provisions of the Commitment Letters or reduce the aggregate principal amount of the Financing)), dated March 26as of the date of this Agreement, 2018by and among X.X. Xxxxxx Chase Bank, among N.A., Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Parent and STG providing for debt financing as described therein (or its applicable Affiliate) and the financial institutions party thereto (together, including all exhibits, schedules and annexes thereto, collectivelyannexes, the “Financing CommitmentBank Commitment Letter”) and a true, complete and correct copy of the fully executed bridge commitment letter, together with any related fee letters (with only the fee amount, economic flex and certain other economic terms redacted in a customary manner (none of which could reasonably be expected to adversely affect conditionality, enforceability or termination provisions of the Commitment Letters or reduce the aggregate principal amount of the Financing)), dated as of the date of this Agreement, by and among X.X. Xxxxxx Xxxxx Bank, N.A., Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc. , Parent and STG providing for debt financing as described therein (together, including all exhibits, schedules and annexes, the “Bridge Commitment Letter,” and, together with the Bank Commitment Letter, the “Commitment Letters”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms conditions set forth therein, each of X.X. Xxxxxx Chase Bank, N.A., Royal Bank of Canada and conditions thereinDeutsche Bank AG New York Branch has agreed, severally but not jointly, to lend the amounts set forth therein (the “Committed Financing”) therein, for the purposes purpose of, among other things, funding paying the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”)aggregate Cash Consideration. The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions uponAgreement, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there Commitment Letters are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is constitute the legal, valid, binding and enforceable obligations obligation of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be enforceable in accordance with their terms, in each case, subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtExceptions. As of the date hereof, there There are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly the conditions precedent set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any Letters (such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closingprecedent, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed “Financing or any other financing for or related to any of the TransactionsConditions”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tribune Media Co), Agreement and Plan of Merger (Sinclair Broadcast Group Inc)
Financing. Parent Xxxxxx has made available entered into and has delivered to the Company Holdco a true, complete and correct accurate fully executed copy of the (ia) the executed commitment letterCommitment Letter and (b) the related fee letters; provided that such fee letters may be redacted solely with respect to economic terms in a customary manner (the “Fee Letters”), dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules schedules, annexes and annexes theretoamendments to such letters in effect as of the date hereof, collectively, copies of which are attached as Exhibit 5.25 (the “Financing CommitmentLetters”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions thereinthereof, the Financing Sources party thereto have committed to lend provide the amounts set forth therein (the provision of such funds as set forth therein, the “Committed ABL Financing”) for the purposes ofset forth in such Financing Letters. The Financing Letters (i) have not been amended, among other thingsrestated or otherwise modified or waived prior to the execution and delivery of this Agreement, funding and the Transactions respective commitments contained therein have not been withdrawn (to the knowledge of Xxxxxx), rescinded (to the knowledge of Xxxxxx), amended, restated or otherwise modified in any respect prior to the execution and related fees and expenses delivery of this Agreement and (ii) to the knowledge of Xxxxxx, no such withdrawal, rescission, amendment, restatement, modification or waiver is contemplated (other than any such amendment, modification, or restatement to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed fee letter associated therewith; provided, such fee letter may be redacted the Commitment Letter as described below (as so redacted, of the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”date hereof). The Financing Commitment Papers have not been amended or modified prior to To the date knowledge of this Agreement and Xxxxxx, as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofAgreement, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Xxxxxx under the Commitment Letter or breachotherwise result in any portion of the ABL Financing not being available. As of the date of this Agreement, Xxxxxx is not aware of any fact, event or failure to satisfy other occurrence that makes any of the representations or warranties of Xxxxxx or its affiliates in the Financing Letters that constitutes a condition precedent to the availability provision of the Committed Financing, ABL Financing on the part of Parent or, to the Knowledge of Parent, Closing Date inaccurate in any material respect. Notwithstanding any other party thereto under the Financing Commitmentprovision of this Section 5.25, in each case, under the terms of the Committed Financing, other than any such default, breach no representation or failure that has been waived warranty is made by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) Xxxxxx pursuant to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related Section 5.25 with respect to any matter arising out of the Transactionsany action, inaction or omission by Xxxxxx, XXX or their respective Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Forbes Energy Services Ltd.), Agreement and Plan of Merger (Superior Energy Services Inc)
Financing. (a) RMT Parent has made available delivered to the Company GPC a true, complete and correct fully executed copy of a commitment letter, including (i) all exhibits, schedules, attachments and amendments to such commitment letter in effect as of the executed commitment date of this Agreement and (ii) any associated fee letters (solely in the case of the administrative agent fee letter, dated March 26redacted in a customary manner solely with respect to fees payable and economic terms (other than covenants) that are confidential, 2018none of which redacted provisions would reduce the aggregate principal amount of the RMT Financing, among Parent impose additional conditions with respect thereto, or otherwise affect the enforceability or availability of the RMT Financing) (or its applicable Affiliatetogether, the “RMT Commitment Letter” and, together with the SpinCo Commitment Letter, the “Commitment Letters”) from the lead arrangers, lenders and the financial institutions other financing sources party thereto (including together with all exhibitsadditional lead arrangers, schedules lenders and annexes thereto, collectivelyother financing sources added to the RMT Commitment Letter or any Alternative RMT Commitment Letter, the “Financing CommitmentRMT Lenders“ and, together with the SpinCo Lenders, the “Lenders”), pursuant to which which, among other things, the lenders party thereto have committedRMT Lenders have, subject to the terms and conditions set forth therein, committed to lend RMT Parent to provide or cause to be provided to Essendant Co. (the amounts “RMT Borrower”) debt financing in the aggregate amount set forth therein (the “Committed Financing”) for bank financings contemplated by the purposes ofRMT Commitment Letter, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted being referred to as described below (as so redacted, the “Fee Letter” and, RMT Financing“; the RMT Financing together with the Financing CommitmentSpinCo Financing, each a “Financing” and together the “Financing Commitment PapersFinancings”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement Agreement, (x) the RMT Commitment Letter has not been amended, restated, waived or modified and (y) the respective commitments contained in the Financing RMT Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. Except for the Fee RMT Commitment Letter (together with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financingall ancillary documents referenced therein), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investingContracts, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees instruments or other fees required to be paid by it in connection with the Financing Commitment that are payable on commitments, obligations or prior to the date hereof, Parent will, directly arrangements (whether written or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (xoral) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed RMT Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rhino SpinCo, Inc.), Agreement and Plan of Merger (Genuine Parts Co)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copy, as of (i) the date of this Agreement, of an executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto letter (including all exhibits, schedules and annexes theretoamendments thereto in effect as of the date of this Agreement), collectivelydated as of December 17, 2012 (the “Commitment Letter”) from JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities LLC (the “Financing CommitmentSources”), pursuant to which the lenders party thereto have committedwhich, and subject to the terms and conditions thereinthereof, the Financing Sources party thereto have agreed and committed to lend provide the amounts debt financing set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have Letter has not been amended amended, restated or otherwise modified or waived prior to the date of this Agreement and as the commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions uponAgreement, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers Letter is in full force and effect and is the legal, valid, binding and enforceable obligations obligation of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge knowledge of Parent, each of the other parties thereto, thereto (except that (x) enforceability may be subject to for the Enforceability Limitations Bankruptcy and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtEquity Exception). As of the date hereof, there There are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in or contemplated by the Financing Commitment Papers delivered Letter. Subject to the terms and conditions of the Commitment Letter, the net proceeds contemplated from the Financing, together with other financial resources of Parent, including cash on hand of Parent and the Company on the Closing Date, will, in the aggregate, be sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of any amounts required to be paid by Parent or Merger Sub pursuant to Article I and Article II and of all fees and expenses required to be paid by Parent or Merger Sub and reasonably expected to be incurred in connection herewith. Parent has fully paid all fees required to be paid prior to the date hereofof this Agreement pursuant to the Commitment Letter. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Sub or, to the Knowledge knowledge of Parent, any other party thereto under the Financing Commitment, in each caseparties thereto, under the terms Commitment Letter. As of the Committed Financingdate of this Agreement, other than Parent is not aware of any such defaultfact, breach occurrence or failure condition that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction makes any of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties assumptions or statements set forth in Article IIIthe Commitment Letter inaccurate in any material respect, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no nor does it have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent or Merger Sub on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any date of the TransactionsClosing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nielsen Holdings N.V.), Agreement and Plan of Merger (Arbitron Inc)
Financing. Parent has made available to the Company a true, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article IIIIV, and assuming no material breach by Knight of its obligations under Sections 6.1 and 6.2 or by Blocker of its obligations under Section 6.5, the amount of funds contemplated to be provided pursuant to the Commitment Letters (as defined below), if funded, together with cash and cash equivalents of GETCO, Knight and the Company available for application to the cash portion of the Merger Consideration and the Refinancing, are sufficient, to (i) consummate the Mergers and the Refinancing and any other repayment or refinancing of indebtedness contemplated by this Agreement or the Commitment Letter and (ii) satisfy all of the other payment obligations of GETCO contemplated hereunder and under the Commitment Letter and the Fee Letter. GETCO has delivered to Knight prior to the date of the Original Merger Agreement copies of a fully executed (i) debt commitment letter dated December 19, 2012 between Jefferies Finance LLC (“Jefferies Finance”) and GETCO (the “Debt Commitment Letter”), (ii) debt fee letter dated December 19, 2012 between Jefferies Finance and GETCO (the performance by “Fee Letter” and, together with the Company and its Subsidiaries of Debt Commitment Letter, the covenants contained in this Agreement “Debt Financing Letters”) and (iii) the equity commitment letter dated December 19, 2012 between GETCO and General Atlantic Partners 83, L.P. (the “Equity Commitment Letter”; together with the Debt Commitment Letter, the “Commitment Letters” and, together with the Debt Financing Letters, the “Financing Letters”), pursuant to the terms, but subject to the conditions, of which financial institutions party thereto, including Jefferies Finance (the “Lenders”), in the case of the Debt Commitment Letter, and General Atlantic Partners 83, L.P., in the case of the Equity Commitment Letter, have committed to provide the Company with financing in the amounts set forth therein for purposes of financing the transactions contemplated by this Agreement, paying related fees and expenses and completing the Refinancing (such debt financing, pursuant to the Debt Commitment Letter, as it may be modified, to the extent permitted by this Agreement, the “Debt Financing” and such equity financing pursuant to the Equity Commitment Letter, as it may be modified, to the extent permitted by this Agreement, the “Equity Financing” and, together with the Debt Financing, the “Financing”); provided, however, that, in the case of the Fee Letter, accurate and complete copies have been delivered to Knight with only the fee amounts, certain terms of “market flex” and the “Securities Demand” provisions redacted. The Financing Letters, in the form provided to Knight by GETCO, are in full force and effect and are legal, valid, binding and enforceable obligations of GETCO and, to the knowledge of GETCO, the other parties thereto in accordance with their respective terms and subject to the Bankruptcy and Equity Exception. As of the date of the Original Merger Agreement, the Financing Letters have not been withdrawn, terminated, repudiated, rescinded, amended or modified, in any respect, and no withdrawal, termination, repudiation, rescission, amendment or modification of the Financing Letters is contemplated. There are no conditions precedent or other contingencies relating to the obligation of any party to any of the Financing Letters to fund the full amount (or any portion) of the Financing other than as expressly set forth in Article VII are satisfied at the Charter Closing Date, Financing Letters as in effect on the date of the Original Merger Agreement. GETCO has paid all fees and expenses required to be paid under the Financing Letters as of the date hereofof the Original Merger Agreement. As of the date of the Original Merger Agreement, Parent GETCO has no reason knowledge of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Commitment Letters inaccurate in any material respect or that would cause the Commitment Letters to believe be terminated or ineffective or, assuming satisfaction of the conditions precedent set forth in Section 8.1 and 8.3, that would reasonably be expected to cause any of the conditions precedent set forth therein not to be met. In no event shall the receipt or availability of any funds or financing (including, for the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closingavoidance of doubt, the Merger Closing and the Pre-Closing Dividend Financing) by GETCO or any of its other obligations under this Agreement that Parent obtain the Committed Financing respective Affiliates or any other financing for or related be a condition to any of the TransactionsGETCO’s obligations hereunder.
Appears in 2 contracts
Samples: Amended and Restated Agreement and Plan of Merger (KCG Holdings, Inc.), And Restated Agreement and Plan of Merger (Knight Capital Group, Inc.)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copies, as of (i) the date of this Agreement, of executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant Debt Commitment Letters to which the lenders party thereto have committedprovide, subject to the terms and conditions therein, to lend the amounts debt financing in an aggregate amount set forth therein (being collectively referred to as the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing As of the date of this Agreement, the Debt Commitment Papers Letters have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment therein have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof there of this Agreement, the Debt Commitment Letters, in the form so delivered, are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related in full force and effect and are legal, valid and binding obligations of Parent, and to the funding knowledge of Parent, the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, or investing, as applicable, similar laws affecting the enforcement of the Committed Financing creditors’ rights generally or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered by equitable principles relating to the Company on or prior to the date hereofenforceability. Parent has fully paid paid, or is paying, substantially contemporaneously with the execution and delivery of this Agreement, any and all commitment fees or other fees required to be paid by it in connection with the Financing Debt Commitment Letters that are payable on or prior to the date hereof, Parent of this Agreement. The net proceeds contemplated by the Debt Commitment Letters will, directly or indirectlytogether with cash and cash equivalents available to Parent and committed credit facilities in the aggregate, continue be sufficient to consummate the Transactions upon the terms contemplated by this Agreement and to pay in full any such all related fees and expenses associated therewith, including payment of all amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as under ARTICLE I of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthis Agreement. As of the date hereofof this Agreement, there are Parent has no conditions precedent related reason to the funding believe that it will be unable to satisfy any term or condition of the full amount of the Committed Financing, other than as expressly set forth closing to be satisfied by it contained in the Financing Debt Commitment Papers delivered to the Company on or prior to the date hereofLetters. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent orunder any term or condition of the Debt Commitment Letters or that would, to individually or in the Knowledge of Parentaggregate, any other permit the financial institutions party thereto under to terminate, or to not make the Financing Commitment, in each case, under the terms initial funding of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) facilities to the be established thereunder upon satisfaction of all conditions thereto; provided that Parent is not making any representations in this Section 4.18 regarding the applicable Financing Sources. Assuming (i) effect of the accuracy inaccuracy of any of the representations and warranties in ARTICLE II. Except as set forth in Article IIIthe Debt Commitment Letters, there are no (i) conditions precedent to the respective obligations of the lenders specified in the Debt Commitment Letters to fund the full amount of the Financing; or (ii) contractual contingencies under any agreements, side letters or arrangements relating to the performance by Financing to which either Parent, Merger Sub or any of their respective Affiliates is a party that would permit the Company and its Subsidiaries lenders specified in the Debt Commitment Letters to reduce the total amount of the covenants contained Financing (other than retranching or reallocating the Financing in this Agreement and (iii) a manner that does not reduce the conditions set forth in Article VII are satisfied at the Charter Closing Date, as aggregate amount of the date hereofFinancing), Parent has no reason to believe or that any of the conditions to would materially and adversely affect the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsFinancing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eastman Chemical Co), Agreement and Plan of Merger (Solutia Inc)
Financing. Parent has made available to the Company a true, complete and correct copy of (ia) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on On or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior has delivered to the Charter Closing Date Company true, accurate and complete copies of (i) the fully executed debt commitment letter, dated as of the date hereofof this Agreement, each by and among inter alia Parent and the Financing Parties specified therein (the “Initial Debt Commitment Letter”) and (ii) the executed fee letter(s), dated as of the Financing Commitment Papers is in full force date of this Agreement, referenced therein, relating to fees and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and other terms with respect to the Knowledge Debt Financing contemplated by such Initial Debt Commitment Letter (with only fee amounts and customary pricing and other economic terms (including “market flex” provisions) redacted, none of Parentwhich redacted provisions would reasonably be expected to affect the conditionality, each enforceability, availability, termination or aggregate principal amount of the Debt Financing) (such Initial Debt Commitment Letter, all exhibits, schedules, term sheets, annexes, supplements, amendments and other parties theretomodifications thereto that are permitted under Section 5.22 and any fee letter(s) with respect thereto of the type described in this subclause (ii) (in each case together with joinders to add additional Financing Parties), except that (x) enforceability may be subject the “Debt Commitment Letters”). Pursuant to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of Debt Commitment Letters as in effect on the date hereof, there are no conditions precedent related and subject to the funding of terms and conditions thereof, the full amount of Financing Parties party thereto have committed to lend Parent and/or its Subsidiaries party thereto the Committed Financing, other than as expressly amounts set forth in the Financing Debt Commitment Papers delivered to Letters for the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties purposes set forth therein (the debt financing contemplated in Article IIIthe Debt Commitment Letters, (ii) the performance by the Company and its Subsidiaries of the covenants contained together with any replacement debt financing permitted hereunder, including any bank financing or debt securities issued in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closinglieu thereof, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions“Debt Financing”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Enerflex Ltd.), Agreement and Plan of Merger (Exterran Corp)
Financing. Parent Buyer has made available received, accepted and agreed to, all applicable commitment fees for (a) a valid and binding commitment letter from certain lenders (the "DEBT FINANCING COMMITMENT LETTER"), committing them to provide to the Company a true, complete and correct copy Buyer debt financing for the Transactions in an aggregate amount of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed$3,535,000,000, subject to the terms and conditions therein, to lend the amounts set forth therein (such debt financing, the “Committed Financing”"DEBT FINANCING") for the purposes of, among other things, funding the Transactions and related fees and expenses and (iib) a valid, binding and irrevocable commitment letter from certain equity investors (the executed fee letter associated therewith; provided"EQUITY FINANCING COMMITMENT LETTER"), such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior committing them to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect provide equity financing to the availability of the Committed Financing or any reduction Buyer in the amount of $1,500,000,000, minus the Committed Financing)actual amount of the equity contributions made by affiliates or assignees of The Carlyle Group and Welsh, certain “back-to-back” letters between Financing Sources and customary engagement letters with respect Carson, Xxxxxxxx & Xxxxx to Buyer pursuant to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the "Equity Financing Commitment Papers delivered to Letter" under the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereofDexter Purchase Agreement, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations terms and conditions set forth therein (y) such equity financing, the remedy of specific performance "XXXXXX EQUITY FINANCING" and injunctive together with the Debt Financing, the "FINANCING"). True and other forms of equitable relief may be subject to equitable defenses and to the discretion complete copies of the court before which any proceeding therefor may be broughtDebt Financing Commitment Letter and the Xxxxxx Equity Financing Commitment Letter and the Dexter "Equity Funding Commitment Letter" are attached as Exhibit N, Exhibit O and Exhibit P to this Agreement, respectively. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Debt Financing Commitment Papers Letter and the Equity Financing Commitment Letter are in full force and effect. True and complete copies of any agreements or understandings relating to Financing Fees have been delivered to the Company on or Qwest Parties prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Purchase Agreement (Dex Media West LLC), Purchase Agreement (Dex Media Inc)
Financing. Parent The Company has made available to the Company a true, complete and correct copy received copies of (ia) the executed a commitment letter, letter dated March 2620, 20181998 from DLJ Merchant Banking Partners II, among Parent (or L.P., and certain of its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), affiliates pursuant to which each of the lenders party thereto have foregoing has committed, subject to the terms and conditions set forth therein, to lend purchase securities of MergerSub for an aggregate amount equal to $54,999,997.50, (b) a letter dated March 20, 1998 from DLJ Bridge Finance, Inc. ("DLJ Bridge Fund") pursuant to which DLJ Bridge Fund has committed, subject to the amounts terms and conditions set forth therein therein, to purchase senior pay-in-kind increasing rate notes of the Company in the amount of $110,000,000 and (c) a commitment letter dated March 20, 1998 from DLJ Capital Funding, Inc. ("DLJ Senior Debt Fund") pursuant to which DLJ Senior Debt Fund has committed, subject to the “Committed terms and conditions set forth therein, to enter into one or more credit agreements providing for loans to the corporation surviving the Reorganization Merger of up to $350,000,000. As used in this Agreement, the aforementioned entities shall hereinafter be referred to as the "Financing Entities". The aforementioned credit agreements and commitments to purchase equity securities of MergerSub shall be referred to as the "Financing Agreements" and the financing to be provided thereunder shall be referred to as the "Financing”." The aggregate proceeds of the Financing are in an amount sufficient to pay the Merger Consideration, to repay the Company's and its Subsidiaries' indebtedness (excluding for this purpose capital lease obligations) for the purposes oftogether with any interest, among other thingspremium or penalties payable in connection therewith, funding the Transactions to provide a reasonable amount of working capital financing and to pay related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedcollectively, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”"Required Amounts"). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related none of the commitment letters relating to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered Agreements referred to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that above has been waived by the lenders withdrawn and MergerSub does not know of any facts or otherwise cured circumstances that may reasonably be expected to result in a timely manner by Parent (or its Affiliate) to the satisfaction any of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as commitment letters relating to the Financing Agreements not being satisfied. MergerSub believes that the Financing will not create any liability to the directors and stockholders of the date hereofCompany under any Federal or state fraudulent conveyance or transfer law. MergerSub further believes that, Parent has no reason to believe that any upon the consummation of the conditions to transactions contemplated hereby, including, without limitation, the availability of Financing, the Committed Financing contemplated by the Financing Commitment applicable to it Surviving Corporation (i) will not become insolvent, (ii) will not be satisfied on left with unreasonably small capital, (iii) will not have incurred debts beyond its ability to pay such debts as they mature, and (iv) will not have its capital impaired. MergerSub knows of no reason why the Charter Closing Date or that the Committed Financing Merger will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not recorded as a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing "recapitalization" for or related to any of the Transactionsfinancial reporting purposes.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Donaldson Lufkin & Jenrette Inc /Ny/), Agreement and Plan of Merger (Donaldson Lufkin & Jenrette Inc /Ny/)
Financing. Parent (a) MergerCo has made available delivered to the Company a true, true and complete and correct copy copies of (i) the executed commitment letter, dated March 26, 2018, among Parent as of the date of this Agreement (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing CommitmentLetter”), made by and among MergerCo and each of the Debt Financing Sources party thereto pursuant to which the lenders Debt Financing Sources party thereto have committed, subject to the terms and conditions thereinthereof, to lend the amounts set forth therein for the transactions contemplated by this Agreement (the “Committed Debt Financing”) for the purposes of), among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; providedequity commitment letters, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and dated as of the date of this Agreement (the “Equity Financing Letters” and together with the Debt Financing Letter, the “Financing Letters”), from the equity investors in MergerCo identified in Section 4.7 of the MergerCo Disclosure Letter (the “Equity Investors”), pursuant to which such parties have committed, subject to the terms thereof, to provide or cause to be provided the cash amounts set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Prior to the date of this Agreement, (i) none of the Financing Letters has been amended or modified and (ii) the respective commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any respect. Except for The Financing Letters, in the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect form so delivered to the availability of Company on the Committed Financing or any reduction in the amount of the Committed Financing)date hereof, certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing)are, as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as force and when they become due and payable on or prior to the Charter Closing Date and effect and, as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the constitutes a legal, valid, valid and binding and enforceable obligations obligation of Parent or its applicable Affiliate party thereto, as applicableMergerCo, and to the best Knowledge of ParentMergerCo, each of the other parties thereto. Except as specifically set forth in the applicable Financing Letters, except that (xa) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding obligations of (i) the full Equity Investors to fund the Equity Financing contemplated by the Equity Financing Letters and (ii) each Debt Financing Source that is party thereto as a lender (each, a “Lender”) to fund the Debt Financing contemplated by the applicable Debt Financing Letters, and (b) there are no contingencies pursuant to any contract, agreement or understanding relating to the transactions contemplated by this Agreement to which MergerCo is a party that would permit either the Equity Investors or the Lenders to reduce the total amount of the Committed Financing, other than Financing contemplated by the Financing Letters (except as expressly set forth in the Debt Financing Commitment Papers delivered to Letter). Assuming the Company on or prior to accuracy of the date hereof. As Company’s representations and warranties set forth in Article III, as of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge MergerCo under any term or condition of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing SourcesLetters. Assuming (i) the accuracy of the Company’s representations and warranties set forth in Article III, (ii) III and assuming the performance by the Company and its Subsidiaries satisfaction of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at Section 6.2(b) with respect to the Charter Closing DateCompany’s obligations under Section 5.14(b), as of the date hereof, Parent MergerCo does not have any Knowledge of any event that would be reasonably likely to cause it to be unable to satisfy on a timely basis any term or condition of Closing to be satisfied by it contained in the Financing Letters. MergerCo has no reason to believe paid any and all commitment and other fees that any of the conditions have been incurred and are due and payable on or prior to the availability of the Committed Financing contemplated by date hereof in connection with the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsLetters.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Theragenics Corp), Agreement and Plan of Merger (Michas Alexis P)
Financing. (a) Parent has made available shall use commercially reasonable efforts to arrange and consummate the Company a true, complete transactions contemplated by the Wachovia Commitment Letter and correct copy of such additional debt and/or equity financing transactions (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentTransactions” and the Wachovia Commitment Letter together with any commitment letter or any similar agreement with respect to the Financing Transactions, the “Financing Commitments”)) such that, at the Closing, Parent would have sufficient funds available to pay all amounts payable at or promptly following the Closing by Parent, Merger Sub or the Surviving Corporation pursuant to which Sections 1.5, 1.6 and 1.7 and all of the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses payable by Parent or Merger Sub in connection with the Merger and other Contemplated Transactions. Without limiting the generality of the foregoing, Parent shall use its commercially reasonable efforts: (i) to the extent within its control, to satisfy all conditions precedent in any Financing Commitments then in effect and in any definitive agreements relating to the Financing Transactions, (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with to negotiate in good faith definitive agreements respecting the Financing CommitmentTransactions, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as (iii) if any material portion of the date financing to be provided at the Closing contemplated by the Wachovia Financing Letter has become unavailable, regardless of this Agreement the respective commitments contained reason therefor, to obtain alternative financing from the same or other sources subject to substantially similar conditions precedent to funding to those set forth in the Financing Wachovia Commitment have not been withdrawn or rescinded in any respectLetter. Except for Parent shall give the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition Company prompt notice of any new conditions (termination, revocation or amendment of the modification Wachovia Commitment Letter or expansion any other Financing Commitments and provide the Company with copies of any existing conditionswritten correspondence with respect thereto, shall provide copies of any documentation (including drafts thereof) with respect to the availability of the Committed any Financing Commitments or any definitive documentation with respect to the Financing Transactions, as and when requested by the Company, and shall otherwise keep the Company reasonably informed as to the status of its efforts to arrange the Financing Transactions. Parent shall not permit any material amendment or modification to be made to the conditions precedent to funding or any other material provision set forth in the Wachovia Financing Commitment (or any other Financing Commitment entered into after the date hereof that replaces the Wachovia Financing Commitment) that could reasonably result in a material reduction in the amount of financing available at the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to Closing thereunder without the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability prior written consent of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required (such consent not to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsunreasonably withheld).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Conexant Systems Inc), Agreement and Plan of Merger (Acquicor Technology Inc)
Financing. Parent has made available delivered to the Company a true, true and complete and correct fully executed copy of (i) the executed commitment letter, dated March 26as of November 23, 20182008, among Parent between Parent, Credit Suisse Securities (or its applicable AffiliateUSA) LLC, Credit Suisse, Cayman Islands Branch, Wachovia Capital Markets, LLC and the financial institutions party thereto (Wachovia Bank, National Association, including all exhibits, schedules and annexes thereto, collectively, amendments to such letter in effect as of the date of this Agreement (the “Financing CommitmentDebt Commitment Letter”) (together with a true and complete copy of any “flex” provisions with respect to the financing contemplated by the Debt Commitment Letter), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions therein, thereof each of the parties thereto (other than Parent) has agreed to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes of, among other things, purpose of funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”)transactions contemplated by this Agreement. The Financing Debt Commitment Papers have Letter has not been amended amended, restated or otherwise modified prior to the date of this Agreement Agreement, and as of the date of this Agreement the respective commitments contained in the Financing Debt Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofof this Agreement. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as As of the date hereofof this Agreement, each of the Financing Debt Commitment Papers Letter in the form so delivered is in full force and effect and is constitutes the legal, valid, valid and binding and enforceable obligations obligation of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge knowledge of ParentParent and Merger Sub, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent (including pursuant to any “flex” provisions) related to the funding of the full amount of the Committed Debt Financing, other than as expressly set forth in the Debt Commitment Letter. Assuming that the Debt Financing Commitment Papers delivered is funded, Parent and Merger Sub shall have sufficient cash available as and when needed, subject to the Company on or prior terms hereof, to pay for the shares tendered pursuant to the date hereofOffer and the aggregate Merger Consideration, the aggregate Option Amount, the aggregate Stock Unit/Restricted Stock Amount, the aggregate Company Performance Unit Amount as well as make any and all other payments required in connection with the transactions contemplated by this Agreement. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent under the Debt Commitment Letter or, to the Knowledge knowledge of ParentParent or Merger Sub, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing DateDebt Commitment Letter and, as of the date hereofof this Agreement, neither Parent nor Merger Sub has no any reason to believe that any of the conditions to the availability of the Committed Debt Financing contemplated to be satisfied by the Financing Commitment applicable to it Parent or Merger Sub will not be satisfied on or, assuming the Charter Closing Date or Company’s compliance with this Agreement and the satisfaction of the Offer Conditions, that the Committed Debt Financing will not be made available to Parent on or prior to such time as Merger Sub is required to accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Charter Closing DateOffer. Parent affirms that it is not a condition has fully paid all commitment fees or other fees required to be paid prior to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any date of its other obligations under this Agreement that Parent obtain pursuant to the Committed Financing or any other financing for or related to any of the TransactionsDebt Commitment Letter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (King Pharmaceuticals Inc), Agreement and Plan of Merger (Alpharma Inc)
Financing. As of the date of this Agreement, Parent has made available delivered to the Company a true, complete and correct copy of (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as copies of the date of this Agreement the respective commitments contained in the Financing fully executed Commitment have not been withdrawn or rescinded in any respect. Except for Letter and the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it executed in connection with the Financing Commitment that are payable on (with certain fee amounts and certain economic terms of the “market flex” provisions redacted, none of which such redacted fees or prior to the date hereof, economic terms would constitute Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as Financing Expenses). As of the date hereof, each of the Financing Commitment Papers Letter is in full force and effect and is constitutes the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party theretoand, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that thereto (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other forms laws affecting creditors’ rights generally and general principles of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtequity). As of the date hereof, there the Commitment Letter has not been amended or modified in any respect and, to the Knowledge of Parent, the respective commitments therein have not been withdrawn or terminated. There are no conditions precedent or, to the Knowledge of Parent, other contingencies related to the funding of the full amount of the Committed Financing on the terms set forth in the Commitment Letter (as such terms may be altered in accordance with the “market flex” provisions set forth in the Fee Letter executed in connection with the Financing, ) other than as expressly set forth as of the date hereof in the Financing Commitment Papers delivered to the Company on or prior to the date hereofLetter. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default breach by Parent or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under Commitment Letter. Subject to the terms and conditions of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing DateCommitment Letter, as of the date hereof, assuming compliance by the Company in all material respects with its covenants contained in Section 5.1 and Section 7.12(h) and assuming satisfaction of the conditions set forth in Section 8.1 and Section 8.2, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letter, together with other financial resources of Parent, including cash on hand and marketable securities, will, in the aggregate, be sufficient to fund the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Amalgamation as of the date hereof (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Amalgamation, including premiums and fees incurred in connection therewith (the “Required Refinancing Indebtedness”)), and all other fees and expenses incurred by Parent and Amalgamation Sub in connection with the Amalgamation and the other transactions contemplated hereby. As of the date hereof, assuming satisfaction of the conditions set forth in Section 8.2, Parent has no reason to believe that either it or any other party will be unable to satisfy on a timely basis any condition of the conditions to Financing under the availability of Commitment Letter or any related Fee Letter or that the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing Letter will not be made available to Parent on the Charter Closing Date. ; provided that Parent affirms that it is not a condition to making any representation or warranty regarding the Charter ClosingCompany’s future performance, the Merger Closing effect of any inaccuracy of the representations and warranties of the Pre-Closing Dividend Company in this Agreement or the failure of the Company to comply with any of its other obligations covenants in all material respects under this Agreement. There are no other letters, agreements or understandings (other than customary non-disclosure agreements and diligence non-reliance letters) between Parent, on the one hand, and the Financing Sources, on the other hand, in connection with the Financing. Parent has fully paid all fees and expenses and other amounts required to be paid on or prior to the date of this Agreement pursuant to the Commitment Letter. Other than as set forth in the Commitment Letter, there are no fees or expenses that would constitute Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsExpenses.
Appears in 2 contracts
Samples: Agreement and Plan of Amalgamation (Global Crossing LTD), Agreement and Plan of Amalgamation (Level 3 Communications Inc)
Financing. Parent has made available and Merger Sub have delivered to the Company a true, correct and complete and correct copy copies of (ia) the executed debt commitment letter, dated March 26as of October 1, 20182020 among Parent, among Parent (or its applicable Affiliate) Merger Sub and the financial institutions Debt Financing Sources party thereto (including all exhibits, schedules and annexes thereto, collectivelyas amended from time to time after the date hereof to the extent not prohibited by this Agreement, the “Financing CommitmentDebt Commitment Letter”), pursuant to which the lenders party thereto Debt Financing Sources have committed, subject only to the terms and conditions set forth therein, to lend the aggregate amounts set forth therein (such lending and funding, the “Committed Debt Financing”) for the purposes ofset forth therein, among other things, funding the Transactions and related fees and expenses and (iib) the executed fee letter associated therewith; providedentered into by Parent, such fee letter may be redacted as described below Merger Sub and the Debt Financing Sources in connection with the Debt Financing (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only ; provided that specific fee amounts and specific “market flex provisions and other customary threshold amounts redacted; providedflex” terms, that the market flex provisions in such Fee Letter may not if any, none of which imposes, nor do they permit the imposition of of, any new conditions (or the modification or expansion of any existing conditions) with respect may have been redacted, and (c) the executed equity commitment letter, dated as of October 1, 2020, among Parent, the Guarantors and the other parties thereto (including all exhibits, schedules and annexes thereto, as amended from time to time after the date hereof to the availability of extent not prohibited by this Agreement, the Committed Financing or any reduction “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”), pursuant to which the Guarantors have committed, subject to the terms and conditions set forth therein, to make a cash equity contribution in the aggregate amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing set forth therein (none of which adversely affect, or impose additional conditions uponsuch equity contribution, the aggregate amount“Equity Financing” and, enforceability or availability of together with the Committed Debt Financing), as the “Financing”) for the purposes set forth therein. The Equity Commitment Letter provides that the Company is a third-party beneficiary thereto in accordance with the terms thereof. As of the date hereof hereof, none of the Commitment Letters has been amended, supplemented or modified, no such amendment, supplement or modification is contemplated or pending (other than amendments, supplements or modifications to the Debt Commitment Letter solely to add additional lenders, arrangers, bookrunners and similar entities), and the respective commitments contained in the Commitment Letters have not been withdrawn, terminated or rescinded in any respect and, to the knowledge of Parent and Merger Sub, no such withdrawal, termination or rescission is contemplated. Except for the Fee Letter and the Commitment Letters, there are no side letters or Contracts to which Parent, Merger Sub or any other arrangements or understandings to which Parent Affiliate of either thereof is a party related to the terms, provision, lending, funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby hereby. As of the date hereof, Parent and Merger Sub have fully paid (or caused to be paid) any and all commitment fees or other than as expressly set forth in the Financing Commitment Papers delivered fees that are required to be paid pursuant to the Company Commitment Letters on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing The Commitment that Letters are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is are the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party theretoParent, as applicableMerger Sub and, and to the Knowledge knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of fund the full amount of the Committed Financing subject only to the satisfaction or waiver of the Financing Conditions, in each case subject to the Bankruptcy and Equity Exceptions. There are no conditions precedent to funding the full amount of the Financing (including pursuant to any market flex provisions with respect to the Fee Letter delivered in connection with the Debt Financing), other than as expressly set forth in the Financing Commitment Papers Letters delivered to the Company on or prior to the date hereofhereof or as amended from time to time to the extent not prohibited by the terms of this Agreement (such conditions, the “Financing Conditions”). As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or Merger Sub or any of their respective Affiliates or, to the Knowledge knowledge of Parent, any other party thereto under any of the Financing CommitmentCommitment Letters, in each casecase that would reasonably be expected to prevent, under delay or impede the terms of the Committed Financing, other than any such default, breach Closing or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries result in any portion of the covenants contained amounts to be provided, loaned, funded or invested in this Agreement accordance with the Commitment Letters being unavailable on the Closing Date. As of the date hereof and (iii) assuming satisfaction or waiver of the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereofVII, Parent has no reason to believe that any of the conditions precedent to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it Letters within the control of Parent and Merger Sub will not be satisfied on the Charter Closing Date or that the Committed full amount of the Financing will not be made available to Parent and Merger Sub in full on the Charter Closing Date. Parent affirms that it is not a condition aware of the existence of any fact or event that would or would reasonably be expected to cause such conditions precedent to the Charter ClosingFinancing contemplated by the Commitment Letters within the control of Parent and Merger Sub not to be satisfied or the full amount of the Financing not to be made available to Parent on the Closing Date. As of the date hereof, and assuming satisfaction or waiver of the conditions set forth in Article VII and the funding of the Financing in accordance with the Commitment Letters, Parent and Merger Sub will have on the Closing Date funds sufficient to pay all amounts payable by Parent or Merger Sub pursuant to Article II on the Closing Date and to pay any and all fees and expenses required to be paid by Parent and Merger Sub in connection with the transactions contemplated by this Agreement and the Financing (collectively, the “Financing Uses”). Notwithstanding anything herein to the contrary, each of Parent and Merger Closing Sub acknowledges and agrees that neither the Pre-Closing Dividend receipt by Parent or any Merger Sub nor the availability to Parent or Merger Sub of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for shall be a condition to the obligations of Parent or related Merger Sub to consummate any of the Transactionstransactions contemplated hereby.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Renal Associates Holdings, Inc.), Agreement and Plan of Merger (American Renal Associates Holdings, Inc.)
Financing. Parent has made available (a) Spinco shall use reasonable best efforts to the Company a true, complete and correct copy of (i) maintain in effect, until the executed earlier of the initial funding of the Spinco Financing (as defined below) and the replacement of the Spinco Financing with the Permanent Financing (as defined below), in each case, in an amount sufficient to fund (and in any event not to exceed) the sum of the Spinco Special Cash Payment and the Additional Amount (the “Spinco Consideration Amount”), the bridge commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement (including: (A) all exhibits, schedules, annexes and amendments to such agreement in effect as of the respective commitments date hereof; and (B) any associated fee letters (together, as amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement and thereof, the “Spinco Commitment Letter”)), from the financing sources party thereto (together with all additional lenders, agents and financing sources added to the Spinco Commitment Letter, the “Spinco Lenders”), pursuant to which, among other things, the Spinco Lenders have committed to provide Spinco with debt financing in the amount set forth therein (the debt financing contemplated by the Spinco Commitment Letter, together with any amendment, modification, supplement, restatement, substitution or waiver thereof in accordance with the terms of this Agreement being referred to as the “Spinco Financing”), (ii) negotiate definitive agreements with respect to the Spinco Financing, on the terms and conditions contained in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Remainco and RMT Partner (the “Spinco Financing Agreements”) and negotiate definitive agreements with respect to the Permanent Financing (as defined below) as directed by the RMT Partner in accordance with the immediately following sentence (the “Permanent Financing Agreements” and, together with the Spinco Financing Agreements, collectively, the “Financing Agreements”), (iii) materially comply with the obligations that are set forth in the Spinco Commitment have not been withdrawn or rescinded in any respect. Except for Letter and the Fee Letter (with only fee amounts Financing Agreements that are applicable to Spinco and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions satisfy (or if deemed advisable by Spinco and RMT Partner, seek a waiver of) on a timely basis all conditions precedent in the modification Spinco Commitment Letter and the Financing Agreements that are within its control, and (iv) in the event that all conditions to funding in the Spinco Commitment Letter or expansion of any existing conditionsthe Financing Agreements are satisfied at or prior to the Distribution, consummate the Financing (as defined below) at or prior to the Distribution (subject to Section 8.19(k) with respect to the availability Additional Amount). Notwithstanding anything to the contrary in this Section 8.19, RMT Partner shall have the right to direct Spinco to replace all or a portion of the Committed Spinco Financing with (x) the proceeds of consummated capital markets debt or equity (including preferred or other hybrid equity) financing and/or (y) commitments in respect of other long term debt from the same and/or alternative bona fide third-party financing sources (any reduction such financing (which may include any sale or exchange of Spinco Debt Securities), the “Permanent Financing” and, together with the Spinco Financing, the “Financing”) so long as (1) all conditions precedent to effectiveness of definitive documentation for such financing have been satisfied and the conditions precedent to funding of such financing are in the amount aggregate, in respect of certainty of funding, substantially equivalent to (or more favorable to Spinco than) the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly precedent set forth in the Spinco Commitment Letter and (2) the terms thereof shall be (A) consistent with the Intended Tax Treatment of the transactions contemplated by the Transaction Documents (as determined by Remainco in good faith in consultation with RMT Partner) and (B) reasonably acceptable to Remainco and Spinco; provided that, if any Financing Commitment Papers delivered is proposed to the Company on or be consummated prior to the date hereof. Parent has fully paid any earlier of (i) February 14, 2022 and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to (ii) the date hereofof obtaining the Private Letter Ruling, Parent will, directly RMT Partner and Remainco shall jointly agree on when to consummate such Financing and no such Financing shall be issued or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or incurred prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are ARTICLE IX (other than those that would be satisfied by action at the Charter Closing Dateand other than the condition in Section 9.3(h)) without the consent of each of RMT Partner and Remainco, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will which in each case shall not be satisfied on the Charter Closing Date unreasonably withheld, conditioned or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsdelayed.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (At&t Inc.), Agreement and Plan of Merger (Discovery, Inc.)
Financing. Parent has made available delivered to the Company a true, complete and correct copy of copies of: (i) the executed commitment letter, dated March as of April 26, 20182011 among Merger Sub, among Parent JPMorgan Chase Bank, N.A., X.X. Xxxxxx Securities LLC, UBS Loan Finance LLC and UBS Securities LLC and excerpts of those portions of the executed fee letter associated therewith that contain any conditions to funding or “flex” provisions or other provisions (or its applicable Affiliateexcluding provisions related solely to fees and economic terms agreed to by the parties thereto) regarding the terms and conditions of the financial institutions party thereto financing to be provided by such commitment letter (such commitment letter, including all exhibits, schedules schedules, annexes and annexes theretoamendments thereto and each such fee letter, collectively, the “Debt Financing Commitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms and conditions set forth therein, JPMorgan Chase Bank, N.A., X.X. Xxxxxx Securities LLC, UBS Loan Finance LLC and UBS Securities LLC have agreed to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes of, among other things, purpose of funding the Transactions and related fees and expenses transactions contemplated by this Agreement; and (ii) the executed fee letter associated therewith; providedequity commitment letter, such fee letter may be redacted dated as described below of April 26, 2011 among Parent and the Guarantors (as so redacted, the “Fee LetterEquity Financing Commitment” and, and together with the Debt Financing Commitment, the “Financing Commitment PapersCommitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Guarantors has committed to invest the cash amount set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). The None of the Financing Commitment Papers have not Commitments has been amended or modified prior to the date of this Agreement and Agreement, and, as of the date of this Agreement hereof, (x) the respective commitments contained in the Financing Commitment Commitments have not been withdrawn withdrawn, modified, amended, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance no such withdrawal, termination, rescission, amendment or modification is contemplated (other than amendments and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtmodifications permitted under Section 5.10). As of the date hereof, there are no side letters or other agreements, Contracts or arrangements to which Parent or any of its Affiliates is a party that could affect the availability of the Financing. As of the date hereof, the Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of each of Parent, Merger Sub and, to the knowledge of Parent, the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed FinancingFinancing (including any “flex” provisions), other than as expressly set forth in the Financing Commitment Papers delivered Commitments. Assuming the accuracy of the representations and warranties set forth in Section 3.2 and performance by the Company of its obligations hereunder, the aggregate net proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments, in the aggregate and together with the cash, cash equivalents and marketable securities of the Company and its Subsidiaries reflected on or prior the consolidated balance sheet of the Company as at the Balance Sheet Date and the contribution contemplated by the letter agreements set forth on Section 4.12 of the Disclosure Schedule in accordance with the terms thereof, will be sufficient for Parent and the Surviving Corporation at the Effective Time to pay all amounts contemplated hereunder to be paid by them, to redeem the date hereofNotes and to pay the amount outstanding under the Loan and Security Agreement, to satisfy the obligations of the Company under Section 2.1(d) and to pay all related fees and expenses. As of the date hereof, no event has occurred which, which would result in any breach or violation of or constitute a default (or an event which with notice or without notice, lapse of time or both, both would constitute become a default default) by Parent or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto Merger Sub under the Financing CommitmentCommitments, in each case, under the terms of the Committed Financing, other than and Parent does not have any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition has fully paid all commitment fees or other fees required to be paid on or prior to the Charter Closing, date hereof pursuant to the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsCommitments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SMART Global Holdings, Inc.), Agreement and Plan of Merger (SMART Modular Technologies (WWH), Inc.)
Financing. Parent has made available (a) Prior to the Effective Time, the Company shall, and shall cause its Subsidiaries to, in connection with any financing of Parent or any of its Subsidiaries undertaken in connection with the Merger (a true“Financing”), complete and correct copy of upon request: (i) furnish the executed commitment letter, dated March 26, 2018, among Parent (or report of the Company’s auditor on the most recently available audited consolidated financial statements of the Company and its applicable Affiliate) Subsidiaries and use reasonable efforts to obtain the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject consent of such auditor to the terms use of such report in accordance with normal custom and conditions therein, practice and use reasonable efforts to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, cause such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior auditor to provide customary comfort letters to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn underwriters, initial purchasers or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investingplacement agents, as applicable, in connection with any such Financing; (ii) furnish Parent and the Financing Sources with (A) audited consolidated balance sheets and related statements of income, stockholders’ equity and cash flows of the Committed Financing or Company and its Subsidiaries for each of the transactions contemplated hereby other last three fiscal years ended more than as expressly set forth in the Financing Commitment Papers delivered to the Company on or 90 days prior to the closing date hereof. Parent has fully paid any for such Financing and all commitment fees or other fees required to be paid by it in connection with (B) unaudited consolidated balance sheets and related statements of income of the Financing Commitment that are payable on or Company and its Subsidiaries for each fiscal quarter ended after the date of the most recent audited financial statements of such person and more than 45 days prior to the closing date hereof, Parent will, directly or indirectly, continue to pay in full any for such amounts required to be paid as Financing and when they become due unaudited statements of income and payable on or prior cash flows for the period elapsed from the beginning of the applicable fiscal year to the Charter Closing Date and as end of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitmentsuch fiscal quarter and, in each case, under for the terms comparable periods of the Committed Financingpreceding fiscal year (with respect to which, other than any in the case of the Company, the independent auditors shall have performed an SAS 100, as amended by PCOAB standards, review, although such defaultindependent auditors will not be preparing, breach nor shall they be required to prepare, a written report concerning such SAS 100 review); provided that filing of the required financial statements on Form 10-K or failure that has been waived Form 10-Q by the lenders Company will satisfy the foregoing requirement; (iii) furnish such additional customary and readily available financial statements, schedules or otherwise cured in a timely manner by Parent (or its Affiliate) other financial data relating to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries as may be reasonably necessary and reasonably requested by Parent in writing to consummate any such Financing; (iv) to the extent required by any initial purchasers, underwriters or placement agents in connection with conducting customary diligence for any such Financing, provide direct contact between (A) senior management and advisors, including auditors, of the covenants contained in this Agreement Company and (iiiB) the conditions set forth proposed Financing Sources or Parent’s auditors in Article VII are satisfied connection with any such Financing, at reasonable times and upon reasonable advance notice; (v) reasonably assist Parent and the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions Financing Sources by reviewing and commenting on business projections and pro forma financial statements; (vi) to the availability of extent such Financing is scheduled to close concurrently with the Committed Effective Time, provide such customary information, documents, authorization letters and certificates, enter into definitive financing documents and take other reasonable actions that are or may be customary in connection with any such Financing contemplated by the Financing Commitment applicable to it will (provided that such agreements, certificates and other documents entered into shall be conditioned upon, and shall not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closingtake effect prior to, the Merger Closing Effective Time); (vii) provide Parent with such customary and relevant information as is reasonably requested by Parent to allow Parent to prepare any necessary pledge or security agreements, certificates or other documents in connection with any such Financing and otherwise reasonably facilitate the Pre-Closing Dividend or 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 Parent; provided that neither the Company nor any of its Subsidiaries is required to enter into any such agreement, certificate or document, pledge any collateral or grant any lien or security interest or obtain a release of any existing lien or security interest prior to the Effective Time; and (viii) provide to the Financing Sources, at least five days prior to the closing date for such Financing, all documentation and other obligations information with respect to the Company and its Subsidiaries that are required by regulatory authorities under this Agreement that the applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA PATRIOT Act of 2001, and requested by Parent obtain or the Committed Financing or any other financing Sources at least 10 Business Days prior to the closing date for or related to any of the Transactionssuch Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Microchip Technology Inc), Agreement and Plan of Merger (Atmel Corp)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copies, as of the date of this Agreement, of (i) the an executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant Investment Agreement to which the lenders party thereto have committedprovide, subject to the terms and conditions therein, to lend equity financing in the amounts aggregate amount set forth therein (being collectively referred to as the “Committed Equity Financing”) for the purposes of), among other things, funding the Transactions and related fees and expenses and (ii) an executed Debt Commitment Letter to provide, subject to the executed fee letter associated therewith; providedterms and conditions therein, such fee letter may be redacted debt financing in an aggregate amount set forth therein (being collectively referred to as described below (as so redacted, the “Fee Letter” andDebt Financing”, and together with the Equity Financing Commitment, collectively referred to as the “Financing Commitment PapersFinancing”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement, neither the Investment Agreement nor Debt Commitment Letter has been amended or modified and the respective commitments contained in the Financing Commitment such letters have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent of this Agreement, each of the Investment Agreement and the Debt Commitment Letter, in the form so delivered, is in full force and effect and is a party related legal, valid and binding obligation of Parent and Holdco, respectively, and to the funding knowledge of Parent, the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, or investing, as applicable, similar laws affecting the enforcement of the Committed Financing creditors’ rights generally or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered by equitable principles relating to the Company on or prior to the date hereofenforceability. Parent has fully paid paid, or is paying, substantially contemporaneously with the execution and delivery of this Agreement, any and all commitment fees or other fees required to be paid by it in connection with the Financing Investment Agreement and the Debt Commitment Letter that are payable on or prior to the date hereof, Parent of this Agreement. The net proceeds contemplated by the Financing Letters will, directly or indirectly, continue together with cash and cash equivalents available to Parent in the aggregate be sufficient to consummate the Transactions upon the terms contemplated by this Agreement and to pay in full any such all related fees and expenses associated therewith, including payment of all amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as under Article II of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtthis Agreement. As of the date hereofof this Agreement, there are Parent has no conditions precedent related reason to the funding believe that it or Holdco, as applicable, will be unable to satisfy any term or condition of the full amount of the Committed Financing, other than as expressly set forth closing to be satisfied by it contained in the Financing Commitment Papers delivered to the Company on or prior to the date hereofLetters. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent oror Holdco under any term or condition of the Financing Letters or that would, individually or in the aggregate, permit the financial institutions party thereto to terminate, or to not make the Knowledge initial funding of the facilities to be established thereunder upon satisfaction of all conditions thereto; provided that none of Parent, Holdco, or Merger Sub are making any other party thereto under representations in this Section 4.14 regarding the Financing Commitment, in each case, under the terms effect of the Committed Financing, other than inaccuracy of any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties in Article III. Except as set forth in Article IIIthe Financing Letters, there are no (i) conditions precedent to the respective obligation of the investors to fund the full amount of the Equity Financing; (ii) conditions precedent to the performance by the Company and its Subsidiaries respective obligations of the covenants contained lenders specified in this Agreement and the Debt Commitment Letter to fund the full amount of the Debt Financing; or (iii) contractual contingencies under any agreements, side letters or arrangements relating to the conditions set forth Financing to which either Parent, Holdco, Merger Sub or any of their respective Affiliates is a party that would permit the lenders specified in Article VII are satisfied at the Charter Closing Date, as Debt Commitment Letter or the investors providing the Investment Agreement to reduce the total amount of the date hereof, Parent has no reason to believe Financing (other than retranching or reallocating the Debt Financing in a manner that any does not reduce the aggregate amount of the conditions to Debt Financing), or that would materially and adversely affect the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Debt Financing or any other financing for or related to any of the TransactionsEquity Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Citadel Broadcasting Corp), Agreement and Plan of Merger (Cumulus Media Inc)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copies of (i) the executed commitment letter, dated March 26, 2018, among Parent letters (or its applicable Affiliate) and as the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelysame may be amended pursuant to Section 6.09(b), the “Debt Financing CommitmentCommitments”), as set forth in Section 4.06 of the Parent Disclosure Letter, pursuant to which the lenders party lender parties thereto have agreed, subject to the terms and conditions thereof, to provide or cause to be provided the debt amounts set forth therein (the “Debt Financing”), and (ii) an executed equity commitment letter (the “Equity Financing Commitment,” and together with the Debt Financing Commitment, the “Financing Commitments”), as set forth in Section 4.06 of the Parent Disclosure Letter, pursuant to which ONCAP Investment Partners II, L.P. has committed, subject to the terms and conditions thereinthereof, to lend invest the amounts amount set forth therein (the “Committed Equity Financing”) for ,” and together with the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedDebt Financing, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment PapersFinancing”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as As of the date of this Agreement Agreement, none of the Financing Commitments has been amended or modified, and the respective commitments contained in the Financing Commitment Commitments have not been withdrawn or rescinded in any respectrescinded. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other Other than as expressly set forth in the Financing Commitment Papers delivered Commitments, there are no other written or oral agreements, understandings or Contracts between Parent, Sub or any of their Affiliates and the other parties to the Company on Financing Commitments and their Affiliates that (A) adversely amend or prior expand upon the conditions precedent to the date hereofFinancing as set forth in such Financing Commitment, (B) would reasonably be expected to delay or hinder the Closing or (C) reduce the aggregate amount of available Financing. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as As of the date hereofof this Agreement, each of (i) the Financing Commitment Papers is Commitments are in full force and effect and is the a legal, valid, valid and binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge obligation of Parent, each Sub and their Affiliates party to such Financing Commitments and, to the knowledge of Parent, the other parties theretothereto and (ii) neither Parent nor Sub is in breach of any of the terms or conditions set forth therein and, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy knowledge of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofParent, no fact, occurrence, condition or event exists or has occurred which, with or without notice, lapse of time or both, would could reasonably be expected to constitute a default or breach, breach or failure to satisfy a condition precedent set forth in the Financing Commitments or that would reasonably be expected to cause the commitments provided in the Financing Commitments to be terminated. Parent and Sub have paid any and all commitment and other fees that have been incurred and are due and payable on or prior to the availability of date hereof in connection with the Committed Financing, on the part of Parent or, Financing Commitments. Subject to the Knowledge terms and conditions of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent this Agreement (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) including the accuracy of the Company’s representations and warranties set forth in Article III, (ii) the performance by the Company Section 3.03 and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date3.13), as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing aggregate proceeds contemplated by the Financing Commitment applicable to it will not be satisfied Commitments, together with the available cash of the Company on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. , will be sufficient for Parent affirms that it is not a condition and Sub to the Charter Closing, pay the Merger Closing Consideration, Restricted Share Consideration, and the Pre-Closing Dividend or Option Consideration upon the terms contemplated by this Agreement, and to pay all related fees and expenses associated with the Transactions (including any and all change in control payments), including payment of its other obligations all amounts under Article II of this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sport Supply Group, Inc.), Agreement and Plan of Merger (Sage Parent Company, Inc.)
Financing. Parent As of the date hereof, Xxxxxx has made available delivered to the Company a true, true and complete and correct fully executed copy of the Debt Commitment Papers (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) and the financial institutions party thereto (including together with all exhibits, schedules and annexes thereto). The aggregate proceeds contemplated by the Financing pursuant to the Debt Commitment Papers will be, if funded in accordance with the terms and conditions of the Debt Commitment Papers (both before and after giving effect to any “market flex” provisions contained in the Fee Letter), sufficient, when taken together with available cash, lines of credit or other sources of immediately available funds, for Parent to consummate the Transactions, including the payment of the Cash Consideration and any fees and expenses of or payable by Parent under this Agreement and the Debt Commitment Papers that are due and payable on the Closing Date (collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment PapersRequired Amount”). The Financing As of the date hereof, the Debt Commitment Papers have not been amended or modified prior accepted by Parent, are in full force and effect and constitute the legal, valid and binding obligation of Parent and, to Parent’s knowledge, each other party thereto, enforceable against each party thereto in accordance with its terms, except insofar as such enforceability may be limited by the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereofCreditors’ Rights. Parent has fully paid (or caused to be paid) any and all commitment fees or and other fees required to be paid by it in connection with the Financing Commitment amounts that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as date of this Agreement pursuant to the date hereof, each of the Financing Debt Commitment Papers is or otherwise in full force and effect and is connection with the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtFinancing. As of the date hereof, no event has occurred, and there is no condition or circumstance existing, which, with or without notice, lapse of time or both, could constitute or could reasonably be expected to constitute a breach or default on the part of Parent or, to Parent’s knowledge, any other party thereto under the Debt Commitment Papers. There are no conditions precedent related to the funding of the full amount of the Committed Financing, Financing on the terms set forth in the Debt Commitment Papers other than as expressly set forth in the Financing Debt Commitment Papers. No counterparty to the Debt Commitment Papers delivered has any right to impose, and Parent does not have an obligation to accept, any condition precedent to such funding other than as expressly set forth in the Debt Commitment Papers, or any reduction to the aggregate amount available under the Debt Commitment Papers at Closing (nor any term or condition that would have the effect of reducing the aggregate amount available under the Debt Commitment Papers at Closing) to an amount that would be insufficient for Parent to consummate the Transactions, including payment of the Required Amount. Assuming (a) the accuracy of Company’s representations and warranties in Article IV of this Agreement and (b) the performance by Company of its obligations in Article VI of this Agreement, as of the date hereof, Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the full amount of the Financing needed to pay the Required Amount will not be available to Parent on or prior to the date hereofClosing Date. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time time, or both, would reasonably be expected to constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms and conditions of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction Debt Commitment Papers. None of the applicable Financing Sources. Assuming (i) the accuracy Debt Commitment Papers have been modified or amended as of the representations and warranties set forth date hereof (provided that the existence or exercise of “market flex” provisions contained in Article III, (ii) the performance by the Company and its Subsidiaries Fee Letter shall be deemed not to constitute a modification or amendment of the covenants contained in this Agreement and (iiiDebt Commitment Papers) the conditions set forth in Article VII are satisfied at the Charter Closing Dateand, as of the date hereof, none of the commitments under the Debt Commitment Papers have been withdrawn or rescinded in any respect. As of the date hereof, there are no other agreements, side letters or arrangements to which Parent has no reason to believe that or any of its Affiliates is a party relating to the conditions to Financing that could adversely affect the availability of the Committed Financing contemplated by that have not been disclosed to the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing DateCompany. Parent affirms acknowledges and agrees that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or to any of its other obligations under this Agreement that Parent obtain obtains financing (including the Committed Financing or any other financing for alternative financing) for, or related to to, any of the Transactionstransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ranger Oil Corp), Agreement and Plan of Merger (Ranger Oil Corp)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy of copies of: (i) the executed commitment letter, dated March 26as of August 4, 20182011 between Parent, among Parent Bank of America, N.A., Xxxxxxx Xxxxx, Xxxxxx Xxxxxx & Xxxxx Incorporated, Barclays Bank PLC, Barclays Capital, the investment banking division of Barclays Bank, Citigroup Global Markets Inc., Credit Suisse AG, Credit Suisse Securities (or its applicable AffiliateUSA) LLC, JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities LLC (collectively, the “Debt Financing Sources”) and excerpts of those portions of the financial institutions party thereto Fee Letter and any other executed fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions or other provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties) regarding the terms and conditions of the financing to be provided by such commitment letter (such commitment letter, including all exhibits, schedules schedules, annexes and annexes theretoamendments thereto and each such fee letter and engagement letter, collectively, (the “Debt Financing Commitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms and conditions set forth therein, the Debt Financing Sources have agreed to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes of, among other things, purpose of funding the Transactions and related fees and expenses and Transactions; (ii) the executed fee letter associated therewith; providedequity commitment letter, such fee letter may be redacted dated as described below of August 4, 2011 among Sophia Holding I and Xxxxxxx & Xxxxxxxx Capital Partners VI, L.P. and the other parties thereto (as so redactedcollectively, the “Fee LetterInvestors”) (the “Transaction Equity Financing Commitment” and, and together with the Debt Financing Commitment, the “Transaction Financing Commitment PapersCommitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Transaction Equity Financing” and together with the Debt Financing, the “Transaction Financing”); and (iii) the executed equity commitment letter, dated as of August 4, 2011 among Datatel and the Investors (the “Termination Fee Equity Financing Commitment” and together with the Transaction Financing Commitments, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Termination Fee Equity Financing” and together with the Transaction Financing, the “Financing”). The None of the Financing Commitment Papers Commitments have not been amended or modified prior to the date of this Agreement and Agreement, and, as of the date of this Agreement hereof, the respective commitments contained in the Financing Commitment Commitments have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no other agreements, side letters or arrangements to which Parent or Merger Sub is a party relating to any of the Financing Commitments that could affect the availability of the Financing. As of the date hereof, the Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of each of Parent and, to the knowledge of Parent, the other parties thereto. There are no conditions precedent related to the funding of the full amount net proceeds of the Committed Financing, Financing (including any “market flex” provisions) other than as expressly set forth in the Financing Commitment Papers delivered Commitments. Assuming the satisfaction of the conditions set forth in Section 8.3(a) and Section 8.3(b), or Section 8.3(a) and Section 8.3(b) of the Asset Purchase Agreement, as applicable, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Transaction Financing Commitments, in the aggregate and together with the available cash, cash equivalents and marketable securities of Datatel and its Subsidiaries, will be sufficient for Parent and the Surviving Corporation to pay the Merger Consideration, Purchaser Company on or prior to pay the Purchase Price, Datatel and each of its Subsidiaries to refinance their outstanding Indebtedness that is required by its terms to be refinanced in connection with the consummation of the Transactions and the Datatel Entities and their respective Subsidiaries to pay the fees and expenses of the Datatel Entities and the SunGard Entities (to the date hereofextent reimbursable under Section 7.15) related to the foregoing. As of the date hereof, no event has occurred which, which would result in any breach or violation of or constitute a default (or an event which with notice or without notice, lapse of time or both, both would constitute become a default or breach, or failure to satisfy a condition precedent to the availability default) by Parent under any of the Committed FinancingFinancing Commitments, on the part of Parent or, to the Knowledge of Parent, and neither Sophia Holding I nor Datatel has any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability any of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent Sophia Holding I or Datatel, as applicable, on the Charter date of the Applicable Closing Dateor, in the case of the Termination Fee Equity Financing, on the date the Parent Termination Fee is payable in accordance with Section 9.2(b). Parent affirms that it is not a condition The Datatel Entities have fully paid all commitment fees or other fees required to be paid on or prior to the Charter Closingdate hereof pursuant to the Financing Commitments. Except as otherwise contemplated by Section 9.4, the Merger Closing and obligations of the Pre-Closing Dividend or any of its other obligations Datatel Entities under this Agreement that Parent and the Asset Purchase Agreement are not subject to any conditions regarding their ability to obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sungard Capital Corp Ii), Agreement and Plan of Merger (GL Trade Overseas, Inc.)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the an executed commitment letter, letter dated March 26, 2018, among Parent as of the date hereof (or its applicable Affiliate) and as the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelysame may be amended pursuant to Section 5.15, the “Financing Commitment”Commitment Letter” and, together with the Fee Letter (as defined below), “Debt Financing Commitments”) pursuant to which the lenders party lender parties thereto have committedagreed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the debt amounts set forth therein (such amounts, the “Committed Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letters referred to in such commitment letter associated therewith; provided(with only fee amounts, such fee letter dates, pricing caps, other economic terms and market flex provisions redacted, none of which would adversely affect the amount or availability of the Debt Financing other than through original issue discount (as may be redacted as described below (as so redactedamended pursuant to Section 5.15, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to As of the date of this Agreement Agreement, none of the Debt Financing Commitments has been amended or modified, and the respective commitments contained in the Debt Financing Commitments have not been withdrawn or rescinded and, to the Knowledge of Parent, no withdrawal or rescission thereof is contemplated as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respectAgreement. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as As of the date hereof there of this Agreement, the Debt Financing Commitments are in full force and effect and constitute the legal, valid and binding obligation of Parent, to the Knowledge of Parent, the other parties thereto (except to the extent that enforceability may be limited by the applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity). There are no side letters or Contracts or any other arrangements or understandings to which Parent is a party conditions precedent related to the funding or investing, as applicable, of the Committed full amount of the Debt Financing or the transactions contemplated hereby other than as expressly set forth in the Debt Financing Commitment Papers delivered Commitments. As of the date of this Agreement, no event has occurred that (with or without notice or lapse of time, or both) would constitute a breach or default under the Debt Financing Commitments by Parent, Merger Sub or Merger Sub I or, to the Company on or prior Knowledge of Parent, any other party to the Debt Financing Commitments. As of the date hereofof this Agreement, assuming the satisfaction of the conditions contained in Section 6.1 and Section 6.2, Parent has no reason to believe that it will be unable to satisfy on a timely basis any term or condition to be satisfied by it and contained in the Debt Financing Commitments. Parent has fully paid any and all commitment fees or other fees required by the terms of the Debt Financing Commitments to be paid on or before the date of this Agreement. Assuming the accuracy of the Company’s representations and warranties contained in Article III in all material respects and subject to the satisfaction of the conditions contained in Section 6.1 and Section 6.2, and assuming that the Debt Financing Commitments are funded in accordance with the terms thereof, Parent will have at Closing funds sufficient for the payment of (a) the aggregate cash portion of the Merger Consideration, (b) any and all fees and expenses required to be paid by it Parent, Merger Sub and Merger Sub I in connection with the Financing Commitment that are payable on or prior transactions contemplated by this Agreement, including pursuant to the date hereofDebt Commitments, Parent will, directly or indirectly, continue to pay in full (c) any such other cash amounts required to be paid as by Parent, Merger Sub or Merger Sub I pursuant to Article II hereof and when they become due and payable on or prior (d) subject to the Charter consummation of the Repurchase on the Closing Date and as of the date hereof(or, each of the Financing Commitment Papers is in full force and effect and is the legalif not so consummated, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except then provided that (x) enforceability any such funds may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereofdelayed draw conditions), there are no conditions precedent related to the funding of the full amount any required refinancings or repayments of any existing Indebtedness of the Committed Financing, other than as expressly set forth Company in connection with the Financing Commitment Papers delivered to the Company on or prior to the date hereofMergers. As of the date hereof, In no event has occurred whichshall the receipt or availability of any funds or financing, with including under the Debt Financing Commitments, by Parent, Merger Sub or without notice, lapse of time or both, would constitute a default or breachMerger Sub I, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not Affiliate thereof be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other Parent’s, Merger Sub’s or Merger Sub I’s obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionshereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Urs Corp /New/), Agreement and Plan of Merger (Aecom Technology Corp)
Financing. Parent has made available delivered to the Company a true, correct and complete and correct copy copies, as of the date of this Agreement, of (i) the an executed commitment letter, dated March 26, 2018, among Parent letter (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing CommitmentEquity Funding Letter”), pursuant ) from certain parties (the “Equity Providers”) to which the lenders party thereto have committedprovide, subject to the terms and conditions therein, to lend equity financing in the amounts aggregate amount set forth therein (being collectively referred to as the “Committed Equity Financing”) for the purposes of), among other things, funding the Transactions and related fees and expenses and (ii) an executed commitment letter and a redacted form of fee letter, dated as of the executed fee letter associated therewith; provideddate of this Agreement, such fee letter may be redacted as described below from the financial institutions identified therein (as so redacted, the “Fee Debt Commitment Letter” and, together with the Financing CommitmentEquity Funding Letter, the “Financing Commitment PapersLetters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). The Financing As of the date hereof, neither the Equity Funding Letter nor Debt Commitment Papers have not Letter has been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment such letters have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (Parent or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent Merger Sub has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Equity Funding Letter and the Debt Commitment Letter that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay . Assuming the Financing is funded in full any such amounts required to be paid as accordance with the terms and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each conditions of the Financing Letters and assuming the accuracy of the representations and warranties set forth in Article III and performance by the Company of its obligations under Section 5.1, the net proceeds contemplated by the Equity Funding Letter and Debt Commitment Papers is in full force and effect and is Letter will, together with the legal, valid, binding and enforceable obligations of Parent cash or its applicable Affiliate party thereto, as applicable, and cash equivalents available to the Knowledge of ParentCompany, each of in the other parties thereto, except that (x) enforceability may aggregate be subject sufficient for Merger Sub and the Surviving Corporation to consummate the Enforceability Limitations Transactions upon the terms and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughtconditions contemplated by this Agreement. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge of Parent, any other party thereto or Merger Sub under the Financing Commitment, in each case, under Equity Funding Letter or the terms Debt Commitment Letter; provided that Parent and Merger Sub are not making any representation regarding the effect of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction inaccuracy of the applicable Financing Sourcesrepresentations and warranties in Article III. Assuming (i) As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article III, (ii) the III and performance by the Company and of its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereofobligations under Section 5.1, Parent has no does not have any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent or Merger Sub on the date of the Closing. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsterms therein.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aeroways, LLC), Agreement and Plan of Merger (Cke Restaurants Inc)
Financing. Parent has, and at all times through the Purchase Date and the Closing will have, available sufficient cash, cash equivalents, fully committed and available lines of credit and definitive financing commitments to satisfy its obligations to permit Purchaser to purchase and pay for Shares pursuant to the Offer, to pay all fees and expenses related to the transactions contemplated by this Agreement to be paid by it, and to consummate the Merger and the other transactions contemplated by this Agreement. Parent will provide, or cause to be provided, such funds to Purchaser or the Paying Agent at or prior to the Purchase Date and the Effective Time, respectively. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the executed commitment letter, dated March 26, 2018, among Parent letters (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Existing Debt Financing CommitmentCommitments”), pursuant to which the such lenders party thereto have committed, subject to the terms and conditions thereinthereof, to lend provide or cause to be provided the amounts set forth therein (the “Committed Existing Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Existing Debt Financing Commitment Papers have not been amended Commitments are in full force and effect and are legal, valid and binding obligations of Parent and the other parties thereto, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or modified prior affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing. There are no conditions precedent or other contingencies to the funding of the Existing Debt Financing other than as set forth in the Existing Debt Financing Commitments. Prior to the date of this Agreement and as Agreement, none of the date of this Agreement Existing Debt Financing Commitments has been modified or amended, and the respective commitments contained in the Financing Commitment therein have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereofthis Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge of Parent, Purchaser or any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Existing Debt Financing SourcesCommitments. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as As of the date hereof, neither Parent nor Purchaser (A) is aware of any fact or occurrence that makes any of the assumptions or the representations or warranties of Parent or any of its Affiliates party to the Existing Debt Financing Commitments, in the Existing Debt Financing Commitments inaccurate in any material respect, (B) has no any reason to believe that it will be unable to satisfy any term or condition of closing to be satisfied by it or its affiliates contained in the Financing Commitments, and (C) has any reason to believe that any portion of the conditions Financing required to consummate the transactions contemplated hereby will not be available to Parent and Purchaser at the Purchase Time and the Effective Time, as applicable. Parent and Purchaser and any of their Affiliates party to the availability of the Committed Financing contemplated Commitments have fully paid any and all commitment fees or other fees required by the Financing Commitment applicable Commitments to it will not be satisfied paid by them on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition prior to the Charter Closingdate of this Agreement and shall in the future pay any such fees as they become due. The Financing Commitments, if and when funded, together with Parent’s available cash, cash equivalents, and fully committed and available lines of credit, will provide Parent and Purchaser with financing at the Merger Closing Purchase Time and the Pre-Closing Dividend or any Effective Time, as applicable, sufficient to, and may be used to, satisfy all of its other Parent’s and Purchaser’s obligations under this Agreement that Parent obtain (including, without limitation, amounts needed to purchase the Committed Financing Shares pursuant to the Offer and pay the Merger Consideration, the payments described in Section 3.2(g) of this Agreement, the funding, refinancing or any other financing for or related to any prepayment of the TransactionsCompany’s outstanding Notes, and any fees and expenses of or payable by Parent, the Purchaser or the Surviving Corporation). To the extent that availability under any fully committed line of credit comprises a portion of the Financing, such availability shall not be utilized or reduced and shall otherwise be maintained from the date hereof (or, if other than an Existing Debt Financing Commitment, from the date that Financing replaces an Existing Debt Financing Commitment) to the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (LS Cable Ltd.), Agreement and Plan of Merger (Superior Essex Inc)
Financing. Parent has made available (a) Prior to the Company a trueClosing Date, complete the Companies shall provide, and correct copy of cause their Subsidiaries to provide, and shall request that their respective officers, employees, agents, accountants and advisors provide, to Buyer such cooperation and assistance as is reasonably requested by Buyer in connection with one or more debt financing transactions (“Debt Financings”), including using their reasonable best efforts to (i) the executed commitment letter, dated March 26, 2018, among Parent furnish Buyer and one or more potential sources of a Debt Financing (or its applicable Affiliate“Debt Financing Sources”) with such financial and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject other information relating to the terms Companies and conditions thereintheir Subsidiaries as Buyer shall reasonably request in order to consummate a Debt Financing, to lend including (x) delivery (within 45 days of the amounts set forth therein (end of the “Committed Financing”applicable fiscal quarter) for the purposes of, among other things, funding the Transactions of unaudited consolidated balance sheets and related fees unaudited consolidated statements of operations and expenses cash flows of Panadero Corp and its Subsidiaries and Panadero Aggregates and its Subsidiaries as of and for each fiscal quarter subsequent to the fiscal quarter ended March 31, 2017 (iiother than the fiscal quarter ended December 31, 2017) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified ended prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) in the remedy event the Closing Date occurs after the date that is 60 days following December 31, 2017, delivery (within 60 days of specific performance December 31, 2017) of audited consolidated balance sheets and injunctive related audited consolidated statements of operations and other forms cash flows of equitable relief may be subject Panadero Corp and its Subsidiaries and Panadero Aggregates and its Subsidiaries for the fiscal year ended December 31, 2017, (ii) assist in the preparation of pro forma financial statements, (iii) use commercially reasonable efforts to equitable defenses cause its independent accountants to provide reasonable assistance to Buyer consistent with their customary practice (including to provide and consent to the discretion use of their audit reports relating to the Companies (including, for the avoidance of doubt, the audit reports of the court before which any proceeding therefor may be brought. As consolidated financial statements of the date hereofCompanies and their Subsidiaries), there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, and any other party thereto under the Financing Commitmentnecessary “comfort letters”, in each case, under on customary terms and consistent with their customary practice in connection with the terms of Debt Financing) and (iv) cooperate reasonably with the Committed FinancingDebt Financing Sources’ due diligence, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations extent customary and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionsreasonable.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Martin Marietta Materials Inc)
Financing. Parent has made available cash resources and financing in an amount sufficient to enable Purchaser to purchase Company Shares pursuant to the Offer, to consummate the Merger and to otherwise perform its obligations under this Agreement. Without limiting the foregoing, Purchaser has delivered to the Company a true, true and complete and correct copy copies of (i) the executed commitment letterletters, dated March 26May 14, 20182007 from General Electric Capital Corporation, among Parent UBS Loan Finance LLC and UBS Securities LLC (or its applicable Affiliate) and the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”"Debt Commitment Letters"), pursuant to which the lenders party lender parties thereto have committed, subject to the terms and conditions thereinthereof, to lend the amounts set forth therein for the purpose of funding the consideration payable by Parent and the Purchaser in respect of the Company Shares and Company Options (the “Committed "Debt Financing”) for "). As of the purposes of, among other things, funding the Transactions and related fees and expenses and date of this Agreement: (iii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Debt Commitment Papers”). The Financing Commitment Papers Letters have not been amended or modified prior to the date of this Agreement modified; and as (ii) none of the date of this Agreement the respective commitments contained in the Financing Debt Commitment Letters have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there There are no side letters conditions precedent or Contracts or any other arrangements or understandings to which Parent is a party contingencies related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding lenders of the full amount of the Committed Debt Financing, other than as expressly set forth in or contemplated by the Financing Debt Commitment Papers delivered to the Company on or prior to the date hereofLetters. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) and assuming the accuracy of the Company's representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions Company's compliance with its covenants set forth in Article VII this Agreement, in each case such that the conditions to the Debt Financing contemplated by the Debt Commitment Letters are satisfied at the Charter Closing Datesatisfied, as of the date hereof, neither Parent nor Purchaser has no any reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be unable to satisfy on a timely basis any term or condition to be satisfied on by it contained in the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing DateDebt Commitment Letters. Parent affirms or Purchaser will fully pay any and all commitment fees that it is not a condition to are incurred and are due and payable in connection with the Charter Closing, the Merger Closing Debt Financing as and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactionswhen they become payable.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Inverness Medical Innovations Inc), Agreement and Plan of Merger (Inverness Medical Innovations Inc)
Financing. (a) Parent has made available delivered to the Company a true, accurate and complete and correct copy of (i) the executed debt commitment letter, dated March 26as of the date of this Agreement, 2018, by and among Parent (or its applicable Affiliate) and the financial institutions agents and lenders party thereto (including all exhibitstogether with any other additional lead arrangers, schedules and annexes bookrunners, managers, arrangers, agents, co-agents or lenders who become party thereto, collectively, the “Financing CommitmentLenders”), including all exhibits, schedules, term sheets, annexes and amendments thereto and any executed fee letters (redacted in respect of (A) the amounts, percentages and basis points of compensation set forth therein and (B) the pricing and other economic terms of the “market flex” provisions set forth therein) (with respect to such redactions described in subclauses (A) and (B) in this clause (i), none of which would adversely affect the amount, conditionality, termination or availability of such financing) (collectively, the “Debt Commitment Letter”), pursuant to which which, and subject to the lenders terms and conditions of which, the Lenders have committed to lend the amounts set forth therein to Parent for the purpose of paying the Required Amount on the Closing Date (such committed debt financing pursuant to the Debt Commitment Letter, together with, unless the context otherwise requires, any debt securities issued in lieu thereof, the “Debt Financing”), (ii) an executed preferred equity commitment letter from the initial purchaser party thereto have committed(together with any other purchasers who become party thereto, collectively, the “Preferred Equity Investor”), including all exhibits, schedules, annexes and amendments thereto and any executed closing payment letters (redacted in respect of (A) the amounts, percentages and basis points of compensation set forth therein, (B) the pricing and other economic terms set forth therein and (C) term sheets attached thereto) (with respect to such redactions described in subclauses (A) through (C) of this clause (ii), none of which would adversely affect the amount, conditionality, termination or availability of such equity financing) (collectively, the “Preferred Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”) to purchase, subject to the terms and conditions therein, to lend the amounts preferred equity securities of Parent (or its Affiliate) in an initial aggregate liquidation preference amount set forth therein (the “Committed Financing”) for the purposes of, among other things, funding purpose of payment of the Transactions and related fees and expenses and Required Amount on the Closing Date (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redactedcommitted preferred equity purchase, the “Fee LetterPreferred Equity Financing” and, together with the Financing CommitmentDebt Financing, the “Financing Commitment PapersFinancing”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Avantor, Inc.), Agreement and Plan of Merger (VWR Corp)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the an executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) letter and Redacted Fee Letter from the financial institutions party thereto identified therein (including all exhibits, schedules and annexes thereto, collectively, the “Debt Financing Commitment”), pursuant which for purposes of Section 5.08(b) and (c) includes any offering of debt or equity securities contemplated by the Debt Financing Commitment) to which the lenders party thereto have committedprovide, subject to the terms and conditions therein, to lend debt financing in the amounts set forth therein (being collectively referred to as the “Committed Debt Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The As of the date hereof, the Debt Financing Commitment Papers have has not been amended or modified prior to the date of this Agreement modified, no such amendment or modification is contemplated (other than amendments or modifications permitted by Section 5.08(a)), and as none of the date of this Agreement the respective obligations and commitments contained in the Financing Commitment such letters have not been withdrawn withdrawn, terminated or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (Parent or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent Sub has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Debt Financing Commitment that are payable on or prior to the date hereofof this Agreement. Assuming (A) the Debt Financing is funded in accordance with the Debt Financing Commitment and (B) the satisfaction or (to the extent permitted by Law) waiver of the conditions in Section 6.02, as of the Closing the net proceeds contemplated by the Debt Financing Commitment, together with Parent willand Company cash on hand, directly or indirectlywill in the aggregate be sufficient for Parent, continue Sub and the Surviving Corporation to pay the aggregate Cash Consideration, all requisite payments of cash in full lieu of fractional shares pursuant to Section 2.02(i), all requisite payments of dividends or other distributions pursuant to Section 2.02(c) or 2.02(j), Restricted Stock Consideration, Option Amounts, RSU Amounts and Deferred Stock Unit Consideration (and any such repayment or refinancing of debt contemplated by this Agreement or the Debt Financing Commitment) and any other amounts required to be paid as and when they become due and payable on or prior to in connection with the Charter Closing Date and as consummation of the date hereofTransactions and to pay all related fees and expenses of Parent, each of Sub and the Surviving Corporation. The Debt Financing Commitment Papers is in full force and effect and is (i) the legal, valid, valid and binding and enforceable obligations obligation of Parent or its applicable Affiliate party theretoand Sub, as applicable, and and, to the Knowledge of ParentParent and Sub, each of the other parties thereto, except that (xii) enforceability may be subject enforceable in accordance with their respective terms against Parent and Sub, as applicable, and, to the Enforceability Limitations Knowledge of Parent and Sub, each of the other parties thereto, subject, as to enforceability, to bankruptcy, insolvency and other Laws of general applicability relating to or affecting creditors’ rights and to general equity principles and (yiii) the remedy of specific performance in full force and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be broughteffect. As of the date hereofof this Agreement, there assuming the accuracy of the Company’s representations and warranties and undertakings under this Agreement to the extent required under Section 6.02(a), (A) no event has occurred that, with or without notice, lapse of time, or both, would or would reasonably be excepted to, constitute a default or breach on the part of Parent, Sub, or to the Knowledge of Parent, any other person party to the Debt Financing Commitment, in each case, under the Debt Financing Commitment and (B) assuming satisfaction or (to the extent permitted by Law) waiver of the conditions to Parent’s and Sub’s obligation to consummate the Merger, neither Parent nor Sub have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be made available to Parent or Sub on the Closing Date in accordance with the terms of the Debt Financing Commitment. There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed Debt Financing, other than as expressly set forth in the Debt Financing Commitment Papers delivered and such other conditions and contingencies with respect to the Company on or prior Debt Financing permitted pursuant to the date hereofSection 5.08(a). As of the date hereofof this Agreement, there are no event has occurred whichContracts or other agreements, with arrangements or without notice, lapse of time understandings (whether oral or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliatewritten) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, which Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or Affiliates is a party related to any the funding of the Transactionsfull amount of the Debt Financing other than as expressly contained in the Debt Financing Commitment and delivered to the Company prior to the execution and delivery of this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Covance Inc), Agreement and Plan of Merger (Laboratory Corp of America Holdings)
Financing. Parent has made available delivered to the Company a true, true and complete and correct copy copies of (i) the executed commitment letter, dated March 26as of August 10, 20182008, among Parent between Parent, Credit Suisse, Credit Suisse Securities (or its applicable AffiliateUSA) LLC, Wachovia Bank, National Association and the financial institutions party thereto Wachovia Capital Markets, LLC (including all exhibits, schedules and annexes thereto, collectivelytogether, the “Financing CommitmentLenders”), pursuant to which the lenders party thereto Lenders have committed, subject to the terms and conditions therein, agreed to lend the amounts set forth therein (the “Committed Debt Financing”) for the purposes purpose of, among other thingsinter alia, funding the Transactions and related fees and expenses and transactions contemplated by this Agreement (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment PapersCommitment”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required by the Financing Commitment to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof. The Financing Commitment has not been amended or modified prior to the date of this Agreement, each of and the respective commitments contained in the Financing Commitment Papers has not been withdrawn or rescinded in any respect. The Financing Commitment is in full force and effect and is constitutes the legal, valid, valid and binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there There are no conditions precedent or other contingencies related to the funding of the full amount of the Committed FinancingDebt Financing required to be satisfied by Parent and Merger Sub, other than as expressly set forth in the Financing Commitment. Assuming the accuracy of the representations and warranties set forth in Section 3.2 and the existence of at least $215 million of available, unrestricted cash on hand with the Company, upon consummation of the Debt Financing, the net proceeds contemplated by the Financing Commitment Papers delivered will, in the aggregate, be sufficient for Merger Sub and the Surviving Corporation to pay the Company on aggregate Merger Consideration, aggregate Option Consideration (the “Aggregate Option Consideration”) and aggregate RSU Consideration (the “Aggregate RSU Consideration”) (and any other repayment or prior refinancing of debt or preferred stock contemplated by this Agreement or the Financing Commitment) and any other amounts required to be paid in connection with the date hereofconsummation of the Transactions and to pay all related fees and expenses. As of the date hereofof this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, breach on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than Commitment and neither Parent nor Merger Sub has any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Debt Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Debt Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (I2 Technologies Inc), Agreement and Plan of Merger (Jda Software Group Inc)
Financing. (a) At the Closing, Parent has made will have, or will have available to it, the Company a truefunds necessary to consummate the Merger and the other transactions contemplated by this Agreement, complete and correct copy of including to pay (i) the Merger Consideration in full in accordance with the terms of this Agreement, (ii) all unpaid transaction fees to be paid in connection with the consummation of the Merger and any amounts required to be paid by Parent pursuant to the terms of this Agreement, (iii) all obligations pursuant to the Company’s Fifth Amended and Restated Credit Agreement dated as of May 1, 2017, as amended, with the lenders that are parties thereto and JPMorgan Chase Bank, N.A., as administrative agent and Canadian administrative agent (the “Company Credit Agreement”) and any amounts to be paid in connection with any other Debt Payoff or any Debt Offer, and (iv) any fees and expenses associated with the foregoing (collectively, the “Required Payments”). Prior to the execution of this Agreement, Parent has delivered to the Company an accurate and complete copy of the executed debt commitment letter, dated March 26June 8, 20180000, among Parent xxxxxxx Xxxxxx, Xxxxxxxxxxx Aktiengesellschaft and UniCredit Bank AG, including all exhibits, schedules or amendments (or its applicable Affiliateif any) and the financial institutions party thereto (including any replacement of such debt commitment letter in connection with any Alternative Financing or otherwise, as replaced, amended, supplemented, modified or waived, including all exhibits, schedules and annexes thereto, collectivelyto such letters, the “Financing CommitmentDebt Commitment Letter”), ) pursuant to which the lenders party thereto Financing Sources named therein have committed, upon the terms and subject to the terms and conditions set forth therein, to lend provide financing in the amounts set forth therein (the “Committed Debt Financing”) for the purposes of, among other things, purpose of funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsRequired Payments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gebr. Knauf Verwaltungsgesellschaft Kg), Agreement and Plan of Merger (Usg Corp)
Financing. (a) As of the date of this Agreement, Parent has made available delivered to the Company a true, complete and correct copy of (i) the a fully executed debt commitment letter, dated March 26, 2018, among Parent as of the date of this Agreement (or its applicable Affiliate) and the financial institutions party thereto (including together with all exhibits, schedules schedules, annexes and annexes joinders thereto, collectivelyas the same may be amended, modified, supplemented, extended or replaced from time to time in compliance with the terms of this Agreement, the “Debt Commitment Letter”) and fully executed fee letters (together with all exhibits, schedules, annexes and joinders thereto, as the same may be amended, modified, supplemented, extended or replaced from time to time in compliance with the terms of this Agreement, the “Fee Letters”) relating thereto (except that the fee amounts, pricing caps and other economic terms in the Fee Letters may be redacted so long as no such redaction covers terms that would adversely affect the amount, conditionality, or availability of the Debt Financing) (such Debt Commitment Letter and Fee Letters are referred to collectively herein as the “Debt Financing Commitment”), among Parent, JPMorgan Chase Bank, N.A. and JPM Securities LLC (together with JPMorgan Chase Bank, N.A., the “Debt Commitment Parties”), pursuant to which the lenders party thereto Debt Commitment Parties have committedagreed, subject to the terms and conditions therein, to lend of the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter may be redacted as described below (as so redacted, the “Fee Letter” and, together with the Debt Financing Commitment, to provide or cause to be provided, on a several and not joint basis, the financing commitments described therein. The debt financing contemplated under the Debt Financing Commitment is referred to herein as the “Financing Commitment PapersDebt Financing.”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ii-Vi Inc), Agreement and Plan of Merger (Coherent Inc)
Financing. Parent has made available (a) Buyer expressly acknowledges and agrees that Buyer’s obligations under this Agreement are not conditioned in any manner whatsoever upon Buyer obtaining any financing. Buyer shall use (and shall cause each of its Affiliates to 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 desirable to arrange and consummate the Company a trueDebt Financing on the terms described in the Debt Commitment Letter (including any “market flex” provisions set forth in the Fee Letter), complete including using (and correct copy causing each of its Affiliates to use) its reasonable best efforts to (i) comply with its obligations under the executed commitment letter, dated March 26, 2018, among Parent Debt Commitment Letter and satisfy on a timely basis (or obtain a waiver of) all terms, conditions, representations and warranties applicable to Buyer and its applicable AffiliateAffiliates set forth in the Debt Commitment Letter; (ii) and maintain in effect the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectively, the “Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to Debt Commitment Letter on the terms and conditions thereincontained therein (including, to lend the amounts extent the same are exercised, any “market flex” provisions set forth therein in the Fee Letter) until the transactions contemplated by this Agreement are consummated (it being understood that the Debt Commitment Letter may be replaced or amended as provided below); (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letter (including, to the extent the same are exercised, any “Committed market flex” provisions set forth in the Fee Letter); (iv) enforce its rights under the Debt Commitment Letter in the event of a breach by the Debt Financing Sources or other parties thereto to the extent such breach results in a failure or material delay to consummate the transactions under this Agreement; (v) cause its senior management as well as appropriate Representatives of Buyer and its Affiliates, if applicable, to cooperate with the marketing and/or syndications efforts of the Debt Financing Sources, (vi) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or Marketing Materials with respect to the Debt Financing”; (vii) for commence the purposes ofmarketing and/or syndication activities contemplated by the Debt Commitment Letter as promptly as practicable; and (viii) subject to clause (iv) of this sentence, among other things, satisfy or cause to be waived on a timely basis all conditions to funding the Transactions and related fees and expenses and (ii) Debt Financing that are applicable to Buyer in the executed fee letter associated therewithDebt Commitment Letter on or prior to Closing; provided, however, that if funds in the amounts and on the terms set forth in the Debt Commitment Letter become unavailable to Buyer on the terms and conditions set forth therein, Buyer shall (x) notify Seller in writing of such event, (y) use reasonable best efforts to obtain Alternative Financing as promptly as possible in amounts and otherwise on terms and conditions in the aggregate, not materially less favorable, taken as a whole, to Buyer than as set forth in the Debt Commitment Letter (taking into account any “market flex” provisions related thereto), and (z) use reasonable best efforts to obtain a new debt commitment letter that provides for such Alternative Financing and promptly deliver a true, correct and complete copy thereof and any fee letter related thereto (provided, that provisions in such fee letter may be redacted in a customary manner (i.e., redacted as described below (as so redactedto pricing, economic market flex and other provisions; provided that the “Fee Letter” andredacted pricing, together market flex and other economic provisions set forth therein shall not affect availability or conditionality of the Debt Financing at Closing)) to Seller; provided further, that if Buyer proceeds with the Financing CommitmentAlternative Financing, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior it shall be subject to the date of same obligations as set forth in this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) Section 5.12 with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Debt Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. Parent has fully paid any and all commitment fees or other fees required to be paid by it in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid as and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each of the Financing Commitment Papers is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing Commitment, in each case, under the terms of the Committed Financing, other than any such default, breach or failure that has been waived by the lenders or otherwise cured in a timely manner by Parent (or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations and warranties set forth in Article III, (ii) the performance by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (United States Steel Corp), Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC)
Financing. Parent has made available (a) Prior to the Closing, the Company a trueagrees to provide, complete and correct copy shall cause its Subsidiaries to provide, and shall use its reasonable best efforts to cause its and its Subsidiaries’ respective officers, directors, employees, accountants, consultants, investment bankers, legal counsel, agents and other advisors and representatives (collectively the “Company Representatives”) to provide, all customary cooperation in connection with the arrangement of the debt financing contemplated by the Debt Commitment Letter or any alternative financing arranged by Parent in lieu of the Debt Financing or any portion thereof in an amount sufficient to permit Parent to consummate the transactions contemplated by this Agreement (i) the executed commitment letter, dated March 26, 2018, among Parent (or its applicable Affiliate) “Alternative Financing,” and together with the financial institutions party thereto (including all exhibits, schedules and annexes thereto, collectivelyDebt Financing, the “Financing CommitmentAvailable Financing”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions therein, to lend the amounts set forth therein (the “Committed Financing”) for the purposes of, among other things, funding the Transactions and related fees and expenses and (ii) the executed fee letter associated therewith; provided, such fee letter as may be redacted as described below (as so redactedreasonably requested by Parent, in order to satisfy the “Fee Letter” and, together with the Financing Commitment, the “Financing Commitment Papers”). The Financing Commitment Papers have not been amended or modified prior to the date of this Agreement and as of the date of this Agreement the respective commitments contained in the Financing Commitment have not been withdrawn or rescinded in any respect. Except for the Fee Letter (with only fee amounts and market flex provisions and other customary threshold amounts redacted; provided, that the market flex provisions in such Fee Letter may not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) with respect to the availability of the Committed Financing or any reduction in the amount of the Committed Financing), certain “back-to-back” letters between Financing Sources and customary engagement letters with respect to the Committed Financing (none of which adversely affect, or impose additional conditions upon, the aggregate amount, enforceability or availability of the Committed Financing), as of the date hereof there are no side letters or Contracts or any other arrangements or understandings to which Parent is a party related to the funding or investing, as applicable, of the Committed Financing or the transactions contemplated hereby other than as expressly requirements set forth in the Debt Commitment Letter and otherwise to consummate the Available Financing, including (i) furnishing Parent and the Financing Commitment Papers delivered Parties, as promptly as reasonably practicable, but in any event by the time required pursuant to the terms of the Debt Commitment Letter, with the historical and pro forma financial statements and financial and other data regarding the Company on or prior and its Subsidiaries necessary to satisfy the conditions set forth in paragraphs 6 and 9 of the Debt Commitment Letter and paragraphs 6 and 7 of Exhibit B to the date hereof. Debt Commitment Letter, as well as all financial statements and financial and other data of the type required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities and of the type and form customarily included in a registered offering of debt securities under the Securities Act to consummate the Available Financing at the time the Available Financing is to be consummated; provided that Parent has fully paid shall be responsible for, and the Company’s obligations are subject to, timely provision of any and all commitment fees post-Closing pro forma cost savings, synergies, capitalization, ownership or other fees required pro forma adjustments desired to be paid incorporated into any pro forma financial information (the information contemplated by it this clause (i), the “Required Information”); (ii) furnishing Parent and the Financing Parties, as promptly as reasonably practicable, but in any event by the time required pursuant to the Debt Commitment Letter, with any other information regarding the business, operations, financial projections and prospects of the Company reasonably requested by Parent as customary in connection with the Financing Commitment that are payable on or prior to the date hereof, Parent will, directly or indirectly, continue to pay Available Financing; (iii) participating in full any such amounts required to be paid as a reasonable number of meetings (including customary one-on-one and when they become due and payable on or prior to the Charter Closing Date and as of the date hereof, each other meetings with representatives of the Financing Commitment Papers is in full force Parties and effect and is the legal, valid, binding and enforceable obligations of Parent or its applicable Affiliate party thereto, as applicable, and to the Knowledge of Parent, each officers of the other parties thereto, except that (x) enforceability may be subject to the Enforceability Limitations Company and (y) the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. As of the date hereof, there are no conditions precedent related to the funding of the full amount of the Committed Financing, other than as expressly set forth in the Financing Commitment Papers delivered to the Company on or prior to the date hereof. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach, or failure to satisfy a condition precedent to the availability of the Committed Financing, on the part of Parent or, to the Knowledge of Parent, any other party thereto under the Financing CommitmentRepresentatives, in each case, under with appropriate seniority and expertise), presentations, road shows, drafting sessions, due diligence sessions and sessions with the terms Financing Parties, prospective lenders and investors, and ratings agencies that are customary for financings of a type similar to the Available Financing; (iv) using reasonable best efforts to assist Parent and Sub and the Financing Parties in the preparation of any prospectuses, offering documents, private placement memoranda, lender presentations, bank information memoranda and similar documents requested by Parent and required in connection with the Available Financing; (v) reasonably cooperating with the marketing efforts of Parent and Sub and the Financing Parties related to the Available Financing, including assisting the Financing Parties in any syndication efforts; (vi) executing and delivering any customary credit agreements, indentures and pledge and security documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees, other definitive financing documents or other certificates, customary closing certificates and documents as may be reasonably requested by Parent and assisting in the negotiation of any such agreements and other documents; provided, that any obligations contained in all such agreements and documents shall be subject to the occurrence of the Committed Closing and effective no earlier than the Closing; (vii) using reasonable best efforts to obtain customary authorization letters, comfort letters, accountants’ consent letters (including consents for use of their reports in any materials relating to the Available Financing and in connection with any filings required to be made by Parent pursuant to the Securities Act or the Exchange Act where the financial statements of the Company or any of its Subsidiaries are included or incorporated by reference), legal opinions and other documents and instruments relating to the Available Financing as may be reasonably requested by Parent in writing; (viii) using reasonable best efforts to facilitate the obtaining of payoff letters, lien terminations and instruments of discharge, all in customary form and to be received at least two (2) Business Days prior to the scheduled Closing Date, providing for the full and complete payoff, discharge and termination on the Closing Date of all indebtedness and related obligations, security interests and other liens as contemplated by the Debt Commitment Letter or other Available Financing to be paid off, discharged and terminated on the Closing Date; (ix) providing customary authorization letters to the Financing Parties authorizing the distribution of information to prospective lenders and investors containing a representation that the public-side versions of such documents, if any, do not include material non-public information about the Company or its Subsidiaries or other Affiliates or its or their securities; (x) obtaining a certificate of the chief financial officer of the Company in customary form and content with respect to solvency matters; (xi) subject to compliance with applicable Laws, permitting any cash and marketable securities of the Company and its Subsidiaries to be made available to Parent and/or Sub at the Closing, provided that the Company shall not be prohibited from using cash and marketable securities in the ordinary course of business consistent with past practice or from taking any action not prohibited by Section 5.1; (xii) reasonably cooperating with the Financing Parties’ due diligence, including providing at least three (3) business days prior to the Closing Date all documentation and other information about the Company and each of its Subsidiaries as is requested in writing by the Financing Parties and relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT Act, provided that the request by Parent for such information is received by the Company at least five (5) business days prior to the Closing Date; and (xiii) taking all other corporate actions, subject to the occurrence of the Closing, as may be reasonably necessary to permit the consummation of the Financing; provided, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries. Notwithstanding the foregoing, (v) none of the Company or any of its Subsidiaries nor any of their respective Representatives shall be required to pay any commitment or other similar fee or incur prior to the Effective Time any other liability or obligation in connection with the financings contemplated by the Debt Commitment Letter or other Available Financing, (w) none of the Company, its Subsidiaries or their respective officers, directors or employees shall be required to execute or enter into or perform any agreement with respect to the financing contemplated by the Debt Commitment Letter or other than Available Financing that is not contingent upon the Closing or that would be effective prior to the Effective Time (and for the avoidance of doubt, the boards of directors or other equivalent governing bodies of Parent, Sub and/or the Surviving Corporation shall enter into or provide any such defaultresolutions, breach consents, approvals or failure that has been waived other closing arrangements on behalf of the Company and its Subsidiaries as may be required by the lenders pursuant to the Debt Commitment Letter at, or otherwise cured as of, the Closing), (x) the Company shall not be required to make any representations, warranties or certifications as to which, after the Company’s use of reasonable best efforts to cause such representation, warranty or certification to be true, the Company has in its good faith determined that such representation, warranty or certification is not true, (y) the Company shall not be required to become subject to any obligations or liabilities with respect to such agreements or documents prior to the Closing, and (z) nothing shall obligate the Company or any of its Subsidiaries to provide, or cause to be provided by Company Representatives or otherwise, any information or take any action to the extent it would result in a timely manner by Parent (violation of Law or loss of any attorney-client privilege. The Company and its Company Representatives shall be given a reasonable opportunity to review and comment on any materials that are to be presented during any meetings conducted in connection with the Available Financing, to the extent such materials relate to the Company or its Affiliate) to the satisfaction of the applicable Financing Sources. Assuming (i) the accuracy of the representations Subsidiaries, and warranties set forth in Article IIIParent shall consider any additions, (ii) the performance deletions or changes suggested thereto by the Company and its Subsidiaries of the covenants contained in this Agreement and (iii) the conditions set forth in Article VII are satisfied at the Charter Closing Date, as of the date hereof, Parent has no reason to believe that any of the conditions to the availability of the Committed Financing contemplated by the Financing Commitment applicable to it will not be satisfied on the Charter Closing Date or that the Committed Financing will not be made available to Parent on the Charter Closing Date. Parent affirms that it is not a condition to the Charter Closing, the Merger Closing and the Pre-Closing Dividend or any of its other obligations under this Agreement that Parent obtain the Committed Financing or any other financing for or related to any of the TransactionsCompany Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NetSpend Holdings, Inc.), Agreement and Plan of Merger (Total System Services Inc)
