Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 6 contracts
Samples: Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Agreement and Plan of Merger (Alaska Communications Systems Group Inc), Amended and Restated Agreement and Plan of Merger (Alaska Communications Systems Group Inc)
Financing. Parent (a) The Buyer has delivered to the Company true, correct Seller Representative a true and complete copiescopy of the executed Debt Financing Commitment by and among HPS Investment Partners, LLC, including all annexes, exhibits, schedules and other attachments thereto and a corresponding customarily redacted fee letter (none of which redacted terms adversely affect the amount or availability of the Debt Financing or impose any conditions on the availability of aggregate principal amount of the Debt Financing), each dated as of the date hereof (collectively, the “Debt Financing Commitment”), pursuant to which, and subject to the terms and conditions of which, the Debt Commitment Parties party thereto have committed to lend the amounts set forth therein to the Buyer as set forth therein for the purpose of funding the transactions contemplated by this Agreement and the Ancillary Agreements (the “Debt Financing”). As of the date of this Agreement, the Debt Financing Commitment has not been amended or modified in any respect, no provisions or rights thereunder have been waived and the respective commitments contained therein have not been withdrawn, rescinded or otherwise modified in any respect, nor is any such amendment, modification, withdrawal or rescission currently contemplated or the subject of discussions. As of the date hereof, the Debt Financing Commitment is in full force and effect and constitutes the legal, valid and binding obligation of the Buyer and, to the knowledge of the Buyer, the other parties thereto (subject to the Enforceability Exceptions) and the Debt Financing Commitment is enforceable against the Buyer and the other parties thereto in accordance with its terms. There are no conditions precedent or other contingencies directly or indirectly related to the funding of the full amount of the Debt Financing (including any flex provisions) other than the conditions precedent expressly set forth in the Debt Financing Commitment, and the Buyer has no reason to believe that, as of the date hereof, of (i) each fully executed Equity Commitment Letter (it or any other party thereto will not be able to satisfy on a timely basis any term or condition of the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing termsCommitment, including terms any condition of closing of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with Debt Financing that is required to be satisfied as a condition of the Debt Financing, may have been redacted or (ii) the full amount of the Debt Financing will not be made available to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated Buyer at or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, prior to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this AgreementClosing. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by conditions set forth in the Debt Financing Commitment Letterand assuming that each of the conditions set forth in Section 8.1 and Section 8.3 is satisfied at Closing, as of the date hereof, the aggregate proceeds of the Debt Financing, together with available cash and cash equivalents of the Buyer on hand as of the date hereof and on the Closing Date, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to (1) pay the amounts required to be paid in connection with Purchase Price upon the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries terms contemplated by this Agreement, to (2) pay any all other amounts required to be paid payable by Parent or Merger Sub on or prior to the Closing Date Buyer in connection with the consummation of the transactions transaction contemplated by this Agreement and (3) pay all related fees and expenses associated with such transaction for which the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent Buyer or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor its Affiliates is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingresponsible.
Appears in 4 contracts
Samples: Securities Purchase Agreement (P10, Inc.), Securities Purchase Agreement (P10, Inc.), Securities Purchase Agreement (P10, Inc.)
Financing. Parent has delivered to the Company true, correct true and complete copiesfully executed copies of (i) the commitment letter, dated as of the date hereof, of (i) each fully executed Equity Commitment Letter among Parent, Discovery Communications, LLC, Xxxxxxx Sachs Bank, USA and Xxxxxxx Xxxxx Lending Partners LLC (the financing provided for therein being collectively referred to as the “Equity FinancingCommitment Letter”) ), and (ii) a fully executed commitment letter the fee letter, dated as of the date hereof, among Parent, Discovery Communications, LLC, Xxxxxxx Sachs Bank, USA and Xxxxxxx Xxxxx Lending Partners LLC (together with all exhibitsas redacted to remove the fee amounts, schedulesalternate transaction fee provisions, and annexes thereto) and fee letter from the financial institutions identified thereinpricing caps, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms rates and subject only to the conditions expressly stated therein, debt financing amounts included in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive informationeconomic terms that could not adversely affect the conditionality, in enforceability or termination of the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent“Redacted Fee Letter”), in each case, they are Permissible including all exhibits, schedules, annexes and amendments to such letters in effect as of the date of this Agreement (collectively, the “Debt Letters”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, the “Financing”) for the purposes set forth in such Debt Letters. The Debt Letters have not been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement (provided that the existence or exercise of “market flex” provisions contained in the Redacted TermsFee Letter shall not be deemed to constitute a modification or amendment of the Commitment Letter), and the respective commitments contained in the Debt Letters, to the Knowledge of Parent, have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement. As of the date hereofof this Agreement, none the Debt Letters are in full force and effect and constitute the legal, valid and binding obligation of the Financing Commitment Letters has been withdrawneach of Parent, terminatedDiscovery Communications, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, LLC and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated herebyparties thereto, including payment of the Aggregate Merger Consideration, subject in each case to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization reorganization, moratorium or similar Applicable Laws other laws affecting generally the enforcement of creditors’ rights generally and by subject to general principles of equity. As of the date hereofof this Agreement, there are no conditions precedent or contingencies related to the funding of the full amount of the Financing Commitment pursuant to the Debt Letters, other than as expressly set forth in the Debt Letters are in full force and, after the date of this Agreement, such other conditions and effect contingencies with respect to the Financing permitted pursuant to Section 6.16. Subject to the terms and conditions of the Debt Letters and assuming the satisfaction or waiver that each of the conditions set forth in Section 7.01 7.1 and Section 7.02 7.2 of this Agreement is satisfied at Closing, the net proceeds contemplated from the Financing, together with other financial resources of Parent, including contemplated cash on hand of Parent, will, in the Closing Dateaggregate, Parent has be sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of the Merger Consideration and all fees and expenses reasonably expected to be incurred in connection therewith. As of the date of this Agreement, no reason to believe that any 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 on the part of Parent or Merger Sub under the Debt Letters or, to the knowledge Knowledge of Parent, any other parties thereto, under any party to the Debt Letters (assuming the accuracy of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 Company’s representations and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount warranties and undertakings under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Datethis Agreement for such purpose). As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, this Agreement there are no side letters or other agreements, Contracts or arrangements or understandings related to which Parent or any Equity Investor is a party that would adversely affect the availability funding of the Equity full amount of the Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided Debt Letters. Parent has fully paid all commitment fees or other fees required to the Company be paid on or prior to the date hereofof this Agreement in connection with the Financing. Each Equity Commitment Letter providesAs of the date of this Agreement, assuming (x) the representations and warranties of the Company contained in this Agreement are true and correct in all material respects, (y) the performance of all obligations and compliance with all covenants and agreements required by this Agreement to be performed or complied with at or prior to the Closing by the Company in all material respects and (z) that each of the conditions set forth in Section 7.1 and Section 7.2 of this Agreement is satisfied at Closing, Parent has no reason to believe that any of the conditions to the Financing will continue not be satisfied, or to providethe Knowledge of Parent, as of the date of this Agreement, that the Company is a third party beneficiary thereof as set forth therein. Financing will not be made available to Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability Closing Date in accordance with the terms of the Debt FinancingLetters.
Appears in 4 contracts
Samples: Voting Agreement (Newhouse Broadcasting Corp), Voting Agreement (Discovery Communications, Inc.), Agreement and Plan of Merger (Discovery Communications, Inc.)
Financing. (a) Parent has delivered to the Company true, correct and complete copiesfully executed copies of (a) the commitment letter, dated as of the date hereof, of (i) each fully executed Equity Commitment Letter (among Parent and the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with Debt Financing Sources party thereto, including all exhibits, schedules, annexes and annexes thereto) and fee amendments to such commitment letter from the financial institutions identified therein, (the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) and (b) the fee letter, dated as of the date hereof, with respect thereto, including all exhibits, schedules, annexes and amendments to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; such fee letter (provided that the fee amounts, pricing caps and the rates, amounts and pricing terms, including other economic terms of included in the “market flex” and certain other commercially sensitive information, in the economic terms of such fee letter entered into in connection with (and its exhibits, schedules, annexes and amendments thereto) may be redacted so long as none of such redacted provisions adversely affect the conditionality, enforceability or termination provisions of the Debt Financing, may have been redacted to Letters or reduce the extentaggregate principal amount of the Debt Financing contemplated hereby), in each case, they in effect as of the date of this Agreement (along with the Debt Commitment Letter, the “Debt Letters”), pursuant to which and subject to the terms and conditions thereof the Debt Financing Sources party thereto have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 6.15, the “Debt Financing”) for the purposes set forth in such Debt Letters. As of the execution and delivery of this Agreement, the Debt Letters have not been amended, restated or otherwise modified or waived in any respect (and no amendment, restatement, modification or waiver is contemplated, other than customary joinders solely to add Debt Financing Sources) and to the Knowledge of Parent (i) the commitments contained in the Debt Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect and (ii) no such withdrawal, rescission, amendment, restatement or modification has been threatened by any Debt Financing Source party thereto. As of the execution and delivery of this Agreement, the Debt Letters are Permissible Redacted Termsin full force and effect and constitute the legal, valid, enforceable and binding obligations of each of Parent and, to the Knowledge of Parent, the other parties thereto (except insofar as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies, whether considered in a Proceeding at law or in equity). As of the date hereofof this Agreement, none there are no conditions precedent or contingencies related to the funding of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate full amount of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with pursuant to the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, other than as expressly set forth in such letters. The financial resources of Parent are, and will be as of the net proceeds contemplated by the Debt Financing Commitment LetterClosing, will in the aggregate, be sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of the aggregate Merger Sub Consideration (including all amounts payable in respect of Company RSUs and the Surviving Corporation to pay the Company PSUs under this Agreement), and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by Transactions. As of the date of this Agreement (the “Required Amount”)Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 7.02(a) 7.1 and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent7.3, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub under the Debt Letters or, to the knowledge Knowledge of Parent, any other parties thereto, under any of Debt Financing Source party to the Financing Commitment Debt Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereofthis Agreement, there are no side letters or other agreements, Contracts or arrangements related to the Debt Financing or understandings to which Parent the funding of all or any Equity Investor is a party that would adversely affect the availability part of the Equity Debt Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided Debt Letters. Parent has fully paid all commitment fees or other fees required to be paid on or prior to the Company date of this Agreement in connection with the Debt Financing and satisfied all of the other terms and conditions required to be satisfied by Parent on or prior to the date hereof. Each Equity Commitment Letter providesAs of the date of this Agreement, assuming the satisfaction of the conditions to the Merger set forth in Section 7.1 and Section 7.3, (i) Parent has no reason to believe that any of the conditions to the Debt Financing will continue to providenot be satisfied, (ii) the Parent does not have Knowledge, as of the date of this Agreement, of any reason that the Company full amount of the Debt Financing will not be made available to Parent, in each case, as of the time at which the Closing is a third party beneficiary thereof as set forth therein. Parent required to occur pursuant to Section 2.3, subject to and Merger Sub acknowledge and agree that their obligation to consummate in accordance with the Merger and pay terms of the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetters.
Appears in 4 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Albertsons Companies, Inc.), Agreement and Plan of Merger (Kroger Co)
Financing. Parent Purchaser has available cash, the Commitment Letters and debt commitment letters, which together are sufficient to enable it to consummate the transactions contemplated hereby. Purchaser has delivered to the Company Sellers true, complete and correct copies of the Commitment Letters and the debt commitment letters entered into as of the date of this Agreement and true, complete copiesand correct copies of the amendments to the debt commitment letters, if any, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financingtransactions contemplated herein pursuant to which the respective signatories thereto have committed, may have been redacted subject to the extentterms and conditions set forth therein, to provide Purchaser with certain funds in each case, they are Permissible Redacted Termsthe amounts described in the Commitment Letters and such debt commitment letters at the Closing. As None of the date hereof, none of the Financing Commitment Letters or debt commitment letters delivered to Sellers has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modifiedmodified (other than any amendment or modification consented to by Sellers), no terms thereunder have been waivedsuch amendment or modification is contemplated by Purchaser, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parentor, to the knowledge of ParentPurchasers, there is no condition existing that would require any such withdrawalthe signatories thereto, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming commitments contained in the Equity Financing is funded in accordance with the Equity Commitment Letters and such debt commitment letters have not been withdrawn or rescinded in any respect. There are no side letters or other Contracts that would modify the Debt Financing is funded obligations under the Commitment Letters or any debt commitment letter delivered to Sellers other than as expressly set forth in accordance with the Debt Financing Commitment LetterLetters or such debt commitment letter delivered to the Sellers. There are no conditions precedent or other contingencies related to the funding of the full amount of the Commitment Letters or any debt commitment letter delivered to Sellers, other than as applicable, the net proceeds expressly set forth in or expressly contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any such debt commitment letter. 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 on the part of Parent Purchaser under the Commitment Letters or Merger Sub or, any debt commitment letter delivered to Sellers other than any such default or breach that has been irrevocably waived by the knowledge of Parent, any applicable other parties thereto, under any of the Financing Commitment Letters. Assuming signatories thereto or otherwise cured in a timely manner by Purchaser to the satisfaction of the conditions set forth in Section 7.01 such other signatories. Purchaser will have at and Section 7.02 on after the Closing Date, as of funds sufficient to (i) pay the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains Purchase Price and (ii) satisfy all of the conditions precedent and other conditions to the payment obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingPurchaser contemplated hereunder.
Appears in 4 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Ocwen Financial Corp), Asset Purchase Agreement (Walter Investment Management Corp)
Financing. On the Closing Date, assuming the Financing contemplated by the Commitment Letter is available on the terms and conditions set forth therein, the Borrowers will have all funds necessary to consummate the Transactions. In no event shall the receipt or availability of any funds or financing by Parent, the Borrowers or any of the Merger Subs or any other financing or other transactions or any marketing or syndication of any of the foregoing be a condition to any of Parent’s or any Merger Sub’s obligations hereunder. Parent has obtained and delivered to the Company a true, correct complete and complete copiesfully executed and accepted debt commitment letter, dated as of the date hereof (such letter, together with all annexes and exhibits attached thereto and the executed fee letter, dated as of the date hereof, of (i) each fully executed Equity Commitment Letter (as amended, modified, waived, supplemented, extended or replaced in accordance with the financing provided for terms therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibitsherein, schedules, and annexes thereto) and fee letter from the financial institutions identified thereincollectively, the “Debt Financing Commitment Letter” and”), together with pursuant to which the Equity Commitment LettersFinancing Sources have committed, the “Financing Commitment Letters”) subject solely to provide, on the terms and subject only to the conditions expressly stated thereinset forth in the Commitment Letter, debt financing in to lend to certain US and Canadian Subsidiaries of Parent named therein as borrowers (the “Borrowers”) the amounts set forth therein; provided that fee amounts and pricing termstherein for, including terms among other things, the purposes of the “market flex” and other commercially sensitive informationFinancing. The Commitment Letter, in the fee letter entered into form so delivered, is in connection full force and effect in accordance with the Debt Financingterms thereof, may have has not been redacted amended or otherwise modified and is the legal, valid and binding obligation of Parent and, to the extentKnowledge of Parent, the other parties thereto, subject to the Bankruptcy and Equity Exceptions. To the Knowledge of Parent, no such commitment provided for in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters Letter has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated supplemented or modified, no terms thereunder have been waivedin any respect, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, supplement or modification or waiver has occurred, and, is contemplated other than as set forth in the Commitment Letter with respect to the extent related Parent’s ability to add additional arrangers thereunder. Parent or the Merger Subs have fully paid any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification all commitment fees or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid other fees in connection with the Merger Commitment Letter that are payable and due on the other transactions contemplated herebydate hereof and will pay in full any such amounts payable and due on, including payment and subject to the occurrence of, the Closing Date. Neither Parent nor any of the Aggregate Merger ConsiderationSubs, nor to the Knowledge of Parent, any other counterparty thereto has committed any breach of any of its covenants or other obligations set forth in, or is in default under, the Commitment Letter, and to the Knowledge of Parent, no event has occurred or fact, condition or circumstance exists that, could or could reasonably be expected to (a) constitute or result in a breach or default on the part of any Person under the Commitment Letter, (b) constitute or result in a failure to satisfy any of the terms or conditions set forth in the Commitment Letter, (c) make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreementassumptions or any of the statements set forth in the Commitment Letter inaccurate in any material respect, (d) give Parent or any Merger Sub any reason to pay believe that any other amounts required of the conditions to be paid by Parent or Merger Sub satisfied contained in the Commitment Letter will not be satisfied on a timely basis on or prior to the Closing Date in connection with or that the consummation of Financing or that the transactions contemplated by this Agreement (full amounts committed pursuant to the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may will not be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, available as of the date hereofClosing if the conditions to be satisfied contained in the Commitment Letter are satisfied or (e) otherwise result in, or give Parent does not have or any Merger Sub any reason to believe that the full amount under that, any portion of the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As as of the date hereof, the Equity Commitment Letter contains all of the Closing. There are no conditions precedent and (directly or indirectly) or other conditions related to the obligations of the parties thereunder to make Financing and the full amount of the Equity Financing available to Parent on funding thereof other than the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as thereof expressly set forth in the Equity Commitment Letter Letter. There are no contingencies that would permit any Financing Source to reduce the total amount of the Financing, including any condition or other contingency relating to the availability of the Financing pursuant to any “flex” provision. Other than the Commitment Letter, there are no other contracts or written agreements (or other arrangements or agreements that are material) entered into by the Parent or any Affiliate thereof that are materially related to the funding of the Financing (except for (i) customary engagement letters and fee credit letters, true and correct copies of which have been provided to the Company on and (ii) customary non-disclosure agreements which do not impact the availability, conditionality or prior to amount of the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (WillScot Mobile Mini Holdings Corp.), Agreement and Plan of Merger (McGrath Rentcorp), Agreement and Plan of Merger (WillScot Mobile Mini Holdings Corp.)
Financing. Parent has delivered to provided the Company true, correct a true and complete copiescopy, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully an executed commitment letter (together with all exhibits, schedules, and annexes theretothe “Debt Financing Commitment”) and fee letter from the financial institutions identified therein, therein (the “Debt Financing Commitment Letter” andParties”), together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on subject to the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided therein for the purpose of funding in part the Cash Consideration and replacing and refinancing any credit facility or other Indebtedness of the Company, Parent or any of their respective Subsidiaries that fee amounts and pricing will not continue after the Effective Time (the “Debt Financing”). The Debt Financing Commitment is valid, binding and, to the Knowledge of Parent, enforceable by Parent against the other parties thereto in accordance with its terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted subject to the extent, in each case, they are Permissible Redacted TermsBankruptcy and Equity Exception. As of the date hereof, none of the Debt Financing Commitment Letters has is in full force and effect and the respective obligations and commitments therein have not been withdrawn, terminated, repudiated, rescinded, amended, rescinded or terminated or otherwise amended and restated or modifiedmodified in any respect. As of the date hereof, no terms thereunder have been waivedevent has occurred which (with or without notice, and no such withdrawallapse of time, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, andboth) would reasonably be expected to constitute a breach in any material respect or default on the part of Parent or, to the extent related to any Person that is not an Affiliate Knowledge of Parent, any of the other parties to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except Debt Financing Commitment. Subject to the extent satisfaction of the conditions contained in Section 7.01 and Section 7.03 hereof and the commencement and completion of the Marketing Period, as of the date hereof, Parent has no reason to believe that any such amendment is of the conditions in the Debt Financing Commitment will not prohibited under this Agreementbe satisfied, or that the Debt Financing will not be made available on a timely basis in order to consummate the Merger. As of the date hereof, no Commitment Party has notified Parent of its intention to terminate any of the Debt Financing Commitment or not to provide the Debt Financing. Assuming (i) the Equity Financing is funded satisfaction of the conditions in accordance with the Equity Commitment Letters Sections 7.01 and 7.03 hereof and (ii) that the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableits terms, the net proceeds contemplated from the Debt Financing, together with cash on hand, will be sufficient to fund the Cash Consideration, the refinancing of any credit facility or other Indebtedness of the Company, Parent or any of their respective Subsidiaries that will not continue after the Effective Time, the payment of any fees and expenses of or payable by the Equity Commitment LettersParent, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated Merger. Parent has paid in full any and all commitment or other fees required by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Debt Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters that are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, due as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters and will not be available to Parent or Merger Sub on the Closing Date. As of pay, after the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinsuch fees as they become due. As of the date hereof, there There are no side letters or other agreementsContracts (except for any customary fee letters and/or engagement letters, arrangements true and complete copies of which have been provided to the Company, with customary redactions (none of which redacted terms would reasonably be expected to adversely affect the principal amount or understandings availability of the Debt Financing) relating to the Debt Financing to which Parent or any Equity Investor of its subsidiaries is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Commitment.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cincinnati Bell Inc), Agreement and Plan of Merger (Cincinnati Bell Inc), Agreement and Plan of Merger (Hawaiian Telcom Holdco, Inc.)
Financing. Parent has delivered to the Company a true, complete and correct copy of an executed Commitment Letter (including all exhibits, annexes, schedules and complete copiesterm sheets and the executed fee letters attached thereto or contemplated thereby, the “Commitment Letter”) (provided that provisions in the fee letters or Commitment Letter relating solely to fees and economic terms agreed to by the parties may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, the availability of the Debt Financing at the Closing)), dated as of April 15, 2018 (such Commitment Letter as the same may be amended or replaced pursuant to, and in accordance with the terms and conditions of, Section 6.18, is referred to herein as the “Debt Financing Commitment”), among Parent and JPMorgan Chase Bank, N.A., as lender (the “Lender”), pursuant to which, among other things, Lender has agreed, subject to the terms and conditions of the Debt Financing Commitment, to provide or cause to be provided, the financing commitments specified therein, the proceeds of which (including proceeds of any notes offering contemplated thereby) are to be used to fund the Parent Merger Consideration, refinance outstanding Indebtedness of the Company and pay transaction fees and expenses. The financing commitments contemplated under the Debt Financing Commitment, as amended or replaced in compliance with Section 6.18, are referred to herein, individually and collectively, as the “Debt Financing”. The satisfaction of the Debt Financing Conditions do not and shall not conflict with the conditions set forth in Sections 7.1, 7.2, and 7.3 hereof. Parent has fully paid any and all commitment fees or other fees in connection with the Debt Financing Commitment that are payable on or prior to the date hereof and, to the Knowledge of Parent, the Debt Financing Commitment is, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) in full force and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “effect. The Debt Financing Commitment Letter” is a legal, valid and binding obligation of Parent and, together with to the Equity Commitment LettersKnowledge of Parent, the “other parties thereto. The Debt Financing Commitment Letters”(or any Debt Financing contemplated thereunder) to providehas not been or will not be amended or modified, on the terms and subject only to the conditions expressly stated thereinexcept as consistent with Section 6.18, debt financing in the amounts set forth therein; provided that fee amounts and pricing termsand, including terms as of the “market flex” and other commercially sensitive informationdate hereof, in the fee letter entered into in connection with the Debt Financing, may have Financing Commitment has not been redacted to the extent, withdrawn or rescinded in each case, they are Permissible Redacted Termsany respect. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, (i) no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub orunder the Debt Financing Commitment, and (ii) subject to the knowledge of ParentAcquisition Agreement Representations (as defined in the Commitment Letter, without giving effect to any other parties modifications thereto, under any ) being true and correct in all material respects as of the Financing Commitment Letters. Assuming date hereof, but only to the extent that the failure of the Acquisition Agreement Representations to be true and correct in all material respects gives Parent and Gamma the right to terminate their respective obligations contained in this Agreement, the performance by the Company and its Subsidiaries of their obligations contained in this Agreement and the satisfaction of the conditions set forth in Section 7.01 7.1 and Section 7.02 on the Closing Date, as of the date 7.2 hereof, Parent does not have any has no reason to believe that it will be unable to satisfy on a timely basis any material term or condition of closing to be satisfied by the full amount under the Debt Financing Commitment Letters will not be available on or prior to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the there are no conditions precedent and other conditions related to the obligations funding of the parties thereunder to make the full amount of the Equity Debt Financing available to Parent on other than as expressly set forth in the terms thereinDebt Financing Commitment. As of the date hereof, there are no side letters or other agreements, contracts or arrangements or understandings (except for customary fee letters, which do not contain provisions that impose any additional conditions to which Parent or any Equity Investor is a party that would adversely affect the availability funding of the Equity Debt Financing on the Closing Date, other than as expressly not otherwise set forth in the Equity Commitment Letter provided Debt Financing Commitment) related to the funding of the full amount of the Debt Financing. The aggregate proceeds contemplated by the Debt Financing Commitment, together with the available cash of Parent and the Company on or prior to the date hereof. Each Equity Commitment Letter providesClosing Date (if any), and any Alternative Financing (if any), will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. be sufficient for Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay upon the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingterms contemplated by this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Eldorado Resorts, Inc.), Agreement and Plan of Merger (Icahn Enterprises Holdings L.P.), Agreement and Plan of Merger (Gaming & Leisure Properties, Inc.)
Financing. Parent has delivered to the Company truecomplete and correct copies of executed commitment letters from Xxxxxxx Xxxxx Bank USA, correct together with related fee letters (with respect to such fee letters, complete copies with only the fee amounts, interest rates, original issue discount, and complete copieseconomic and other “market flex” terms redacted, none of which redacted provisions would adversely affect the amount or availability of the Financing on the Closing Date) of which have been provided to the Company (collectively, the “Financing Commitments”), pursuant to which the Financing Sources party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of financing the Transactions and related Expenses (together with any Alternative Financing and any capital markets debt or equity financing in replacement thereof or supplemental thereto, the “Financing”). Subject to Parent’s rights with respect to Alternative Financing pursuant to and subject to the terms and conditions of Section 7.18, as of the date hereof, of (i) each fully executed Equity Commitment Letter (none of the financing provided for therein being collectively referred to Financing Commitments has been amended or modified as of the “Equity Financing”) date hereof in any material respect and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing respective commitments contained in the amounts set forth therein; provided Financing Commitments have not been withdrawn or rescinded in any material respect (it being understood that fee amounts and pricing terms, including terms the exercise of the “market flex” and provisions under any fee letter shall not be deemed an amendment, modification, withdrawal or rescission). Except for engagement letters with respect to the Financing, there are no side letters or contracts, agreements or understandings to which Parent, First Merger Sub or Second Merger Sub is a party related to the funding or investing, as applicable, of the Financing other commercially sensitive information, than as expressly set forth in the fee letter entered into Financing Commitments. Parent has fully paid any and all commitment fees or other fees in connection with the Debt Financing, may have been redacted to the extent, in each case, they Financing Commitments that are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub payable on or prior to the Closing Date in connection with the consummation date of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityAgreement. As of the date hereof, the Financing Commitment Letters Commitments are in full force and effect and assuming are the legal, valid, binding and enforceable obligations of Parent, First Merger Sub and Second Merger Sub, as the case may be, and, to the knowledge of Parent, First Merger Sub and Second Merger Sub, each of the other parties thereto, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws of general applicability relating to or affecting creditors’ rights and to general equity principles. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing Commitments, other than as expressly set forth in the Financing Commitments. Assuming the accuracy of the representations and warranties of the Company set forth in this Agreement, compliance by the Company with the covenants set forth in this Agreement and the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing DateArticle VIII, Parent has no reason to believe that any event has occurred as of the date hereof which, with or without notice, lapse of time or both, would constitute, or would reasonably be expected to constitute constitute, a default or breach of the Financing Commitments on the part of Parent Parent, First Merger Sub or Second Merger Sub or, to the knowledge of Parent, First Merger Sub and Second Merger Sub, any other parties party thereto. Subject to the accuracy of the representations and warranties of the Company set forth in this Agreement and compliance by the Company with the covenants set forth in this Agreement, under as of the date hereof, Parent has no reason to believe that any of the conditions to the Financing Commitment Letterscontemplated by the Financing Commitments will not be satisfied. Assuming the Financing is funded in accordance with the Financing Commitments (and assuming the accuracy of the representations and warranties of the Company set forth in this Agreement, compliance by the Company with the covenants set forth in this Agreement and the satisfaction of the conditions set forth in Section 7.01 Article VIII), Parent, First Merger Sub and Section 7.02 Second Merger Sub will have on the Closing DateDate sufficient funds to (i) pay the Merger Consideration; (ii) pay any and all Expenses required to be paid by Parent, as of the date hereofFirst Merger Sub, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Second Merger Sub on the Closing Date. As of the date hereofSub, the Equity Commitment Letter contains Surviving Corporation and the Surviving Entity in connection with the Mergers and the Financing; and (iii) satisfy all of the conditions precedent and other conditions to the payment obligations of Parent, First Merger Sub, Second Merger Sub, the parties thereunder to make Surviving Corporation and the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingSurviving Entity contemplated hereunder.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Grail, LLC), Agreement and Plan of Merger (Grail, LLC), Agreement and Plan of Merger (Illumina, Inc.)
Financing. Parent has delivered Attached as Annex 5.2(e)(i) to the Company true, correct Parent Disclosure Letter is a true and complete copiescopy of a debt commitment letter, as of other than the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified thereinrelating thereto (collectively, the “Debt Financing Commitment Letter” andCommitment”), together with pursuant to which the Equity Commitment Letterslenders party thereto have agreed, the “Financing Commitment Letters”) subject to provide, on the terms and subject only to the conditions expressly stated set forth therein, debt financing in to lend the amounts set forth therein; provided that fee amounts and pricing terms, including terms therein for the purposes of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of financing the transactions contemplated by this Agreement (the “Required AmountDebt Financing”), assuming . Attached as Annex 5.2(e)(ii) to the satisfaction Parent Disclosure Letter is a true and complete copy of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parentequity commitment letter, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except dated as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, from GS Capital Partners V Fund, L.P. (the “Equity Financing Commitment” and together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which the parties thereto have committed, subject to the terms and conditions set forth therein, to invest the amount set forth therein (the “Equity Financing” and together with the Debt Financing Commitment, the “Financing”). None of the Financing Commitment Letters Commitments has been amended or modified prior to the date of this Agreement, no such amendment or modification is contemplated, and the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. Parent has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof, and the Financing Commitments are in full force and effect and assuming are the satisfaction valid, binding and enforceable obligations of Parent, Merger Sub and to the knowledge of Parent, the other parties thereto. There are no conditions precedent or waiver other contingencies related to the funding of the conditions full amount of the Financing, other than as set forth in Section 7.01 and Section 7.02 on or contemplated by the Closing Date, Parent has no reason to believe that any Financing Commitments. 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming Commitments, and as of the satisfaction date hereof Parent has no reason to believe that any of the conditions set forth to the Financing contemplated by the Financing Commitments will not be satisfied or that the Financing will not be made available to Parent on the Closing Date. Subject to the terms and conditions contained in Section 7.01 this Agreement and Section 7.02 the Financing Commitments, Parent and Merger Sub will have at the Closing, together with the available cash of the Company and its Subsidiaries on the Closing Date, as funds sufficient to pay the cash portion of the date hereof, Parent does not have aggregate Per Share Merger Consideration (and any reason to believe that the full amount under repayment or refinancing of debt contemplated by this Agreement or the Financing Commitment Letters will not Commitments) and any other amounts required to be available to Parent or Merger Sub on paid in connection with the Closing Date. As consummation of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter providestransactions contemplated hereby, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent pay all related fees and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingexpenses.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Goldman Sachs Group Inc), Agreement and Plan of Merger (McJunkin Red Man Holding Corp), Agreement and Plan of Merger (McJunkin Red Man Corp)
Financing. Parent has delivered to the Company true, Partnership (a) a correct and complete copiesfully executed copy of each of the bridge term loan credit facility commitment letter and the revolving credit facility commitment letter, dated as of the date hereof, among Parent, Truist Bank, Trust Securities, Inc, Bank of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) America, N.A. and (ii) a fully executed commitment letter (together with BofA Securities, Inc. including all exhibits, schedules, schedules and annexes theretoto such letter in effect as of the date of this Agreement and (b) correct and complete fully executed copies of the fee letter from the financial institutions identified thereinletters referenced therein (together, the “Debt Financing Commitment Letter” and, together with ”) (it being understood that each such fee letter has been redacted to remove the Equity Commitment Lettersfee amounts, the “Financing Commitment Letters”) to provide, on the terms rates and subject only to the conditions expressly stated therein, debt financing amounts included in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive informationeconomic terms that could not adversely affect the conditionality, enforceability, termination or aggregate principal amount of the Committed Financing). Pursuant to, and subject to the terms and conditions of, the Debt 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 set forth in such Debt Commitment Letter. The Debt 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 fee letter entered into in connection with the Debt Financing, may Commitment Letter have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to otherwise modified in any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or respect prior to the Closing Date in connection with the consummation execution and delivery of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such no withdrawal, rescission, amendment, restatement or other Persons party thereto modification in accordance with its terms, any respect is contemplated (except as enforcement may be limited by bankruptcy, insolvency, reorganization contemplated or similar Applicable Laws affecting creditors’ rights generally and by general principles as permitted as of equitythe date hereof in the Debt Commitment Letter). As of the date hereofexecution and delivery of this Agreement, the Financing Debt Commitment Letters are Letter is in full force and effect and assuming constitutes the satisfaction or waiver legal, valid and binding obligation of each of Parent and, to the knowledge of Parent, the other parties thereto, enforceable in accordance with its terms against Parent and, to the knowledge of Parent, each of the other parties thereto, subject to the Equitable Exceptions. There are no conditions precedent related to the funding of the full amount of the Committed Financing pursuant to the Debt Commitment Letter, other than as expressly set forth in Section 7.01 the Debt Commitment Letter. Subject to the terms and Section 7.02 on conditions of the Closing DateDebt Commitment Letter, Parent has the net proceeds contemplated from the Committed Financing will be in an amount sufficient to pay the Payoff Amounts, all amounts required in connection with the Redemptions and to pay the expenses reasonably expected to be incurred in connection with this Agreement and the other transactions contemplated hereby (such amount, the “Required Amount”). As of the execution and delivery of this Agreement, (i) no reason to believe that any event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would or would reasonably be expected to constitute a default default) or breach result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties theretoparty to the Debt Commitment Letter, under any of the Financing Debt Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 Letter and Section 7.02 on the Closing Date, as of the date hereof, (ii) Parent does not have any reason to believe that any of the full amount under conditions to the Committed Financing Commitment Letters will not be satisfied or that the Committed Financing will not be available to Parent or Merger Sub on the Closing Date. As of Parent or its Subsidiaries have fully paid all commitment fees or other fees to the extent required to be paid on or prior to the date hereof, of this Agreement in connection with the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinCommitted Financing. As of the date hereof, there are no side letters or other agreements, contracts or arrangements or understandings to which Parent or any Equity Investor of its Affiliates is a party that would reasonably be expected to adversely affect the availability or amount of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereofCommitted Financing. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. The obligations of Parent and Merger Xxxxxx Sub acknowledge and agree that their obligation hereunder are not subject to consummate any condition regarding Parent’s or any other Person’s ability to obtain financing for the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingother transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (NuStar Energy L.P.), Agreement and Plan of Merger (Sunoco LP), Agreement and Plan of Merger (Sunoco LP)
Financing. Parent has delivered to the Company true, correct and complete copiesCompany, as of the date hereofof this Agreement, true, complete and correct copies of (i) each fully an executed Equity commitment letter, dated as of the date hereof (the “Debt Commitment Letter“, provided that, for purposes of this Agreement, the Debt Commitment Letter (shall also include, after the date hereof, to the extent alternative financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully from alternative financial institutions is obtained in accordance with this Agreement, any executed commitment letter for such alternative financing), among Parent and Xxxxx Fargo Bank, National Association, Xxxxx Fargo Capital Finance, LLC, 1903 Onshore Funding, LLC and Special Value Continuation Partners, LP (collectively, the “Debt Commitment Parties“; the Debt Commitment Parties, together with all exhibitswith, schedules, and annexes thereto) and fee letter to the extent alternative financing from the alternative financial institutions identified thereinis obtained in accordance with this Agreement, any such alternative financial institutions, collectively, the “Debt Financing Sources“) pursuant to which the Debt Commitment Parties (or Debt Financing Sources, as applicable) 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“ which includes, to the extent alternative financing from alternative financial institutions is obtained in accordance with this Agreement, any such alternative financing), and (ii) executed equity commitment letters, dated as of the date hereof (the “Equity Commitment Letters“, and together with the Debt Commitment Letter” , the “Commitment Letters“), pursuant to which Family LLC and Xxxxxx Equities VII, LLC, respectively (the “Equity Financing Sources“ and, together with the Equity Commitment LettersDebt Financing Sources, the “Financing Commitment Letters”Sources“) have committed, subject to provide, on the terms and subject only conditions thereof, to invest up to the conditions expressly stated therein, debt financing in the respective amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flex” Equity Financing“, and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”Financing“), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing The Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereofof this Agreement, and are legal, valid and binding obligations of Parent does not have any reason to believe that and the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Dateother parties thereto. As of the date hereof, the Equity Commitment Letter contains all no amendment or modification of the conditions precedent Commitment Letters has been or made and other conditions to the obligations of respective commitments contained in the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinCommitment Letters have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, there are no side letters or other agreements, arrangements or understandings agreements to which Parent or any Equity Investor its Affiliates is a party that would adversely affect relating to the availability funding of the Equity Financing other than the Commitment Letters, the Rollover Agreement, the Exchange Agreement and any customary fee letters or engagement letters that do not impact the conditionality or amount of the Financing. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Commitment Letters and/or the Financing that are due and payable on or prior to the date hereof (to the extent not otherwise waived by the applicable Financing Source). As of the date of this Agreement, assuming the accuracy in all material respects of the representations and warranties set forth in Article III, neither Parent nor Merger Sub has any reasonable basis to believe that it will be unable to satisfy on a timely basis any material term (to the extent such material term is to be performed or complied with prior to the Closing Date) or condition to close set forth in any of the Commitment Letters, in each case, in accordance with the terms therein, on or prior to the Closing Date. There are no conditions precedent related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in or contemplated by the Equity Commitment Letter provided to the Company on or prior to the date hereofLetters. Each Equity Commitment Letter provides, and The Financing will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. provide Parent and Merger Sub acknowledge with financing on the Closing Date sufficient to pay all cash amounts required to be paid by Parent and agree that their obligation Merger Sub under this Agreement in connection with the Merger, together with any fees and expenses of or payable by Parent and Merger Sub with respect to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned Financing on the availability of Debt FinancingClosing Date.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Cole Kenneth Productions Inc), Agreement and Plan of Merger (Cole Kenneth Productions Inc)
Financing. Buyer or Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) obtained a fully executed commitment letter (the “Debt Commitment Letter”) from GSO Capital Partners LP (together with all exhibits, schedules, and annexes any other lender that becomes a party thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” andLender”), a true and complete copy of which has been provided to Seller (together with each related fee letter (subject to redaction so long as such redaction does not cover terms that would adversely affect the Equity Commitment Lettersconditionality, availability or term of the “Financing Commitment Letters”) to provideFinancing)), on the terms and providing for, subject only to the conditions expressly stated therein, debt financing in the amounts and qualifications set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive informationall funds necessary, in the fee letter entered into in connection with the Debt Financingwhich, may have been redacted subject to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction fulfilment of the conditions set forth in Section 7.02(athis Agreement, are available to Buyer, together with its cash on hand, to consummate the transactions contemplated by this Agreement. As of the date of this Agreement, the Debt Commitment Letter and the financing commitment contained therein, (i) and Section 7.02(b) on have not been amended, restated, withdrawn, rescinded or otherwise modified or waived, and, no such amendment, restatement, withdrawal, rescission or other modification or waiver of the Closing Date. Each Financing Debt Commitment Letter is enforceable against Parentcontemplated and (ii) is in full force and effect, Merger Sub (to and constitute the extent Parent or Merger Sub is a party thereto) legal, valid and binding obligations of Buyer and, to the knowledge Knowledge of ParentBuyer, such the other Persons party thereto in accordance with its termsparties thereto, except as enforcement such enforceability may be limited by bankruptcy, insolvency, reorganization reorganization, fraudulent conveyance, moratorium or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). There are no conditions precedent related to the funding of the financing described in the Debt Commitment Letter or contingencies that would permit the Lender, Buyer or Parent to reduce the total amount of the Financing, other than as set forth in the Debt Commitment Letter. Buyer has fully paid any and all commitment fees or other fees or deposits required by the Debt Commitment Letter to be paid on or before the date hereof. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would that constitutes or would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub orBuyer and, to the knowledge Knowledge of ParentBuyer, any other parties thereto, under any the Debt Commitment Letter. As of the Financing Commitment Letters. Assuming date of this Agreement, assuming the satisfaction accuracy of the conditions Seller’s representations and warranties set forth in Section 7.01 this Agreement and Section 7.02 on the Closing Dateperformance by Seller of its obligations under this Agreement, as of the date hereof, Parent does not have any Buyer has no reason to believe that any of the full amount under conditions to the Financing contemplated by the Debt Commitment Letters Letter will not be satisfied or that the Financing will not be available to Parent or Merger Sub Buyer on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereofthis Agreement, there are no side letters or other agreements, Contracts or written arrangements or understandings to which Parent Buyer or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter and any customary fee letters (a redacted version of which has been provided to Seller as described above) and non-disclosure agreements that do not impact the Company on conditionality or prior to amount of the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Joe's Jeans Inc.), Asset Purchase Agreement
Financing. Parent (a) The Buyer has delivered to the Company truecomplete, true and correct and complete copies, as copies of the date hereof, of (i) each fully executed Equity Commitment Letter (the debt financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, the “Debt Commitment Letter” and annexes thereto) and fee letter from the financial institutions identified thereincommitment thereunder, the “Debt Financing Commitment Letter” and, together with Commitment”) and the Equity Commitment Letters, related fee letters (the “Financing Commitment Fee Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing (provided that provisions in the amounts set forth therein; provided that fee amounts Fee Letters such as numerical fees and pricing terms, including terms of the “market flex” and certain other commercially sensitive information, terms in the fee letter entered into Fee Letter that are customarily redacted in connection with purchase agreements of this nature but which redactions do not affect the Debt Financingamount, timing or conditionality for the availability of funds, may have been redacted to redacted) which obligate certain parties thereto (the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the “Debt Financing is funded in accordance with Sources”) to provide debt financing (the “Debt Financing”). The Debt Financing Commitment Letteris a legal, as applicable, the net proceeds contemplated by the Equity Commitment Letters, valid and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment binding obligation of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement Buyer (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement the enforceability thereof may be limited by bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity. As )), and is the legal, valid, and binding obligations of the date hereof, the other parties thereto. The Debt Financing Commitment Letters are is in full force and effect effect, and assuming the satisfaction has not been withdrawn, rescinded or terminated or otherwise amended, modified or waived in any respect, and no such withdrawal, rescindment, termination, amendment, modification or waiver is contemplated by the Buyer or, to the knowledge of Buyer, any other party thereto. The funding of the conditions set forth amounts in Section 7.01 and Section 7.02 the Debt Financing Commitment, together with the Buyer’s cash on hand, will be sufficient to enable the Buyer to consummate the transactions on the terms contemplated by this Agreement, and to pay or cause the payment of the Estimated Closing DateAmount and any amounts which, Parent has no reason to believe that any by the terms of this Agreement, will reduce the Estimated Closing Amount, and all of the out-of-pocket fees, costs and expenses of the Buyer arising from the consummation of the transactions contemplated by this Agreement and in connection with the Debt Financing and payable at the Closing. No event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would would, or would reasonably be expected to to: (x) constitute a default or breach on the part of Parent the Buyer or Merger Sub any of its Affiliates or, to the knowledge of Parentthe Buyer, any other parties party thereto, under any term or condition of the Debt Financing Commitment Letters. Assuming the satisfaction or otherwise result in all or a portion of the Debt Financing contemplated thereby to be unavailable; (y) constitute or result in a failure to satisfy any of the terms or conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as Debt Financing Commitment; or (z) otherwise result in all or a portion of the date hereof, Parent does Debt Financing not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingbeing available.
Appears in 3 contracts
Samples: Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.), Sale and Purchase Agreement (P10, Inc.)
Financing. Parent Saw Mill has delivered received written commitments from (a) Credit Agricole Indosuez (the "Senior Lender"), dated as of January 20, 2000 (the "Senior Debt Commitment Letter"), pursuant to which the Senior Lender has committed, subject to the terms and conditions contained therein, to provide up to $130,000,000 in senior debt financing for the Transactions, (b) Credit Suisse First Boston (the "Subordinated Debt Lender"), dated as of January 19, 2000 (the "Subordinated Debt Commitment Letter"), pursuant to which the Subordinated Debt Lender has committed, subject to the terms and conditions contained therein, to provide up to $125,000,000 in subordinated debt financing for the Transactions, and (c) Chase Capital Partners, Massachusetts Mutual Life Insurance Company and The Northwestern Mutual Life Insurance Company (collectively, the "Preferred Equity Investors"), dated as of January 27, 2000 (the "Preferred Equity Commitment Letter", and collectively with the Senior Debt Commitment Letter and the Subordinated Debt Commitment Letter, the "Commitment Letters"), pursuant to which the Preferred Equity Investors have committed, subject to the terms and conditions contained therein, to provide up to $35,000,000 in preferred equity financing for the Transactions. The proceeds from the Debt and Preferred Equity Financing, assuming the Commitment Letters have been funded pursuant to and in accordance with their respective terms, together with the Pre-Merger Contributions, shall provide sufficient funds to pay, pursuant to the Merger, the Merger Consideration, the Option Consideration and the repayment of indebtedness for borrowed money of the Company or any of its subsidiaries that is required to be repaid as a result of the Transactions, if any, and to pay all fees and expenses related to the Transactions. A true, correct and complete copies, as of the date hereof, copy of (i) each fully executed the Senior Debt Commitment Letter is attached hereto as Exhibit G-1, (ii) the Subordinated Debt Commitment Letter is attached hereto as Exhibit G-2, (iii) the Preferred Equity Commitment Letter is attached hereto as Exhibit G-3 and (iv) Saw Mill's agreement of limited partnership (the financing "Saw Mill Limited Partnership Agreement") has been provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibitsSpecial Committee prior to date hereof. The partners named in the Saw Mill Limited Partnership Agreement, schedulestaken together, and annexes thereto) and fee letter from the financial institutions identified thereinhave committed, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) subject to provide, on the terms and subject only to the conditions expressly stated contained therein, debt financing in to contribute the amounts set forth therein; provided that fee amounts Contributed Cash and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted Contributed Company Common Shares to the extent, in each case, they are Permissible Redacted TermsSaw Mill. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that Merger Sub is not an Affiliate aware of Parent, to the knowledge of Parent, there is no condition existing that any facts which in its reasonable judgment would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with prevent the consummation of the transactions financing contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityLetters. As of the date hereof, the Financing Commitment Letters and the Saw Mill Limited Partnership Agreement have not been modified or amended and are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingeffect.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Jason Inc), Agreement and Plan of Merger (Calendar Acquisition Corp), Agreement and Plan of Merger (Jason Inc)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter commitment letters and Rollover Commitments (the financing provided for therein being collectively referred to as collectively, the “Equity Buyer Group Commitments”), pursuant to which certain Buyer Group Parties have agreed to provide equity financing to Parent and debt financing to a wholly owned subsidiary of Parent in connection with the Merger (collectively, the “Buyer Group Financing”) ), and (ii) a fully executed debt commitment letter letters and related term sheets (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment LetterLetters” and, and together with the Equity Commitment LettersBuyer Group Commitments, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich, on and subject to the terms and subject only conditions thereof, the lenders specified therein have committed to provide Parent or the conditions expressly stated therein, debt financing Surviving Corporation with loans in the amounts set forth described therein; provided that fee amounts , the proceeds of which will be used as described therein to consummate the Merger and pricing terms, including terms of the other transactions contemplated hereby (the “market flexDebt Financing” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Buyer Group Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereof, none the Financing Commitments are in full force and effect and have not been withdrawn or terminated or otherwise amended or modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof and, as of the date hereof, the Financing Commitment Letters has been withdrawnCommitments (or, terminatedif applicable, repudiatedany New Financing Commitments entered into pursuant to Section 5.9) are the valid, rescinded, amended, amended binding and restated or modified, no terms thereunder have been waived, enforceable obligations of Parent and no such withdrawal, termination, repudiation, rescission, amendment, amendment Merger Sub and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment LetterBuyer Group Party a party thereto, as applicable, and to the net proceeds contemplated by Knowledge of Parent, the Equity Commitment Lettersother parties thereto. The Financing, subject to the terms and conditions of the Financing Commitments, and the net proceeds contemplated by the Debt Financing Commitment Letter, will cash on hand in the aggregate, be sufficient Company constitute all of the financing required for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with consummation of the Merger and the other transactions contemplated hereby, including and are sufficient for the payment of the Aggregate aggregate Merger Consideration and the aggregate Option Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereofthis Agreement, Parent does not have any reason to believe that any of the full amount under conditions to the Financing Commitment Letters will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the Closing Date. As date of the date hereof, the Equity Commitment Letter contains Closing. The Financing Commitments contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As Notwithstanding anything in this Agreement to the contrary, the Debt Commitment Letters may be superseded at the option of Parent or Merger Sub after the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or this Agreement but prior to the date hereof. Each Equity Commitment Letter providesEffective Time by New Financing Commitments, subject to, and will continue in accordance with Section 5.9. In such event, the term “Financing Commitments” as used herein shall be deemed to provide, that include the Company is a third party beneficiary thereof as set forth therein. Parent New Financing Commitments to the extent then in effect and Merger Sub acknowledge and agree that their obligation the term “Financing” shall be deemed to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingbe similarly modified.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Waste Industries Usa Inc), Agreement and Plan of Merger (Goldman Sachs Group Inc/)
Financing. Parent (i) Buyer has delivered to the Company true, correct true and complete copiesexecuted copies of (a) a debt commitment letter (including all exhibits, schedules and annexes thereto, and as amended, supplemented or replaced in compliance with this Agreement, the “Debt Commitment Letter”), dated as of the date hereof, between JPMorgan Chase Bank, N.A., Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Deutsche Bank AG New York Branch and Deutsche Bank Securities Inc. (ithe “Initial Commitment Parties”), Buyer and CommScope, Inc., pursuant to which and subject to the terms and conditions thereof, the Initial Commitment Parties have committed to lend the amounts set forth therein to Buyer for the purpose of funding the transactions contemplated by this Agreement and fees and expenses incurred in connection therewith (the provision of such funds as set forth therein, including the offering or private placement of debt securities contemplated by the Debt Commitment Letter and any related engagement letter, the “Debt Financing”), (b) each fully executed Equity the fee letter referenced in the Debt Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Fee Letter” and, together with the Debt Commitment Letter, the “Debt Financing Commitment”) redacted in a customary manner with respect to the fees, certain economic terms of the flex provisions and “securities demand” provisions and other customarily redacted provisions, which redacted information does not adversely affect the amount, availability or conditionality of the funding of the Debt Financing, (c) an Equity Commitment LettersLetter (including all exhibits, schedules and annexes thereto, and as amended, supplemented or replaced in compliance with this Agreement, the “Sponsor Equity Commitment”), dated as of the date hereof, between Buyer, as an express third party beneficiary pursuant to Section 5 thereof, Carlyle Partners VII, L.P., a Delaware limited partnership (the “Sponsor”), and Carlyle Partners VII S1 Holdings, L.P., a Delaware limited partnership (together with any permitted transferees thereof, the “Equity Investor”) and (d) an Investment Agreement (including all exhibits, schedules and annexes thereto, and as amended, supplemented or replaced in compliance with this Agreement, the “Investment Agreement”, and together with the Sponsor Equity Commitment, the “Equity Commitments” and, together with the Debt Financing Commitment, the “Financing Commitment LettersCommitments”) ), dated as of the date hereof, between the Equity Investor and Buyer. Pursuant to providethe Sponsor Equity Commitment, on and subject to the terms and subject only conditions thereof, Sponsor has committed to the conditions expressly stated therein, debt financing in provide the amounts set forth therein; provided that fee therein to the Equity Investor for the purpose of funding the amounts and pricing terms, including terms of contemplated by the Investment Agreement (the “market flex” Sponsor Equity Financing”). Pursuant to the Investment Agreement, and other commercially sensitive informationsubject to the terms and conditions thereof, in the fee letter entered into Equity Investor has committed to provide the amounts set forth therein to Buyer for the purpose of funding the transactions contemplated by this Agreement and fees and expenses incurred in connection therewith (the “Buyer Equity Financing” and, together with the Sponsor Equity Financing, the “Equity Financing” and, together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereof, none of (i) the Financing Commitment Letters has Commitments and the commitments contained therein have not been terminated, withdrawn, terminated, repudiated, rescinded, amended, amended restated, supplemented or otherwise modified in any material respect and restated or modified(ii) to the Knowledge of Buyer, no terms thereunder have been waivedsuch termination, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated (other than amendments permitted by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”Section 6.14), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereofof this Agreement, the Financing Commitment Letters Commitments are in full force and effect and constitute the legal, valid and binding obligation of each of Buyer and, to the Knowledge of Buyer, the other parties thereto, enforceable in accordance with their respective terms against Buyer and, to the Knowledge of Buyer, the other parties thereto, subject in each case to the Bankruptcy and Equity Exception. There are no conditions precedent or contingencies related to the funding of the Financing pursuant to the Financing Commitments (including any “flex” provisions) other than as expressly set forth in or contemplated by the Financing Commitments. Assuming performance by the Company of its obligations that are required to be performed prior to the Closing, the aggregate proceeds to be disbursed pursuant to Financing Commitments will be sufficient, together with other sources of cash available to Buyer, to pay all of Buyer’s obligations under this Agreement, including the payment of the aggregate Per Share Acquisition Consideration and all fees, costs and expenses to be paid in connection therewith, including such fees, costs and expenses relating to the Financing. As of the date of this Agreement, to the Knowledge of Buyer and assuming the satisfaction or waiver accuracy in all material respects of the representations and warranties set forth in Section 5.1 as of the Closing and satisfaction of all conditions set forth in Section 7.01 7.1 and Section 7.02 on 7.2 as of the Closing DateClosing, Parent has no reason to believe that any event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute a breach or default or breach on the part of Parent Buyer under the Financing Commitments or Merger Sub or, any other party to the knowledge of ParentFinancing Commitments, any other parties thereto, under (ii) constitute or result in a failure by Buyer to satisfy any of the terms or conditions set forth in the Financing Commitment LettersCommitments, (iii) make any of the representations and warranties of Buyer set forth in the Financing Commitments inaccurate in any material respect or (iv) otherwise result in any portion of the Financing being unavailable (taking into account the Marketing Period). Assuming As of the date of this Agreement, assuming satisfaction of the conditions set forth in Section 7.01 7.1 and Section 7.02 on the Closing Date, 7.2 as of the date hereofClosing, Parent Buyer does not have any reason to believe that any of the full amount under conditions to the Financing Commitment Letters will not be satisfied or that the Financing will not be available to Parent or Merger Sub Buyer on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereofthis Agreement, there are no side letters letters, other Contracts or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely could affect the availability of the Equity Financing on the Closing Date, Date other than as expressly set forth in the Equity Commitment Letter provided Financing Commitments, the Fee Letter, customary engagement letters, customary fee discount or rebate letters and non-disclosure agreements. No commitment or other fees are required to the Company be paid on or prior to the date hereof. Each Equity Commitment Letter provides, hereof under the terms of the Financing Commitments and Buyer will continue pay (or cause to provide, that be paid) all other commitment fees and other fees as required to be paid under the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate terms of the Merger and pay Financing Commitments upon the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingClosing.
Appears in 2 contracts
Samples: Conduct Agreement, Conduct Agreement (CommScope Holding Company, Inc.)
Financing. Parent has delivered If any ABL Grantor shall be subject to any Insolvency Proceeding and if ABL Agent consents to the Company true, correct and complete copies, use of cash collateral (as such term is defined in Section 363(a) of the date hereofBankruptcy Code; herein, of (i) each fully executed Equity Commitment Letter (the "Cash Collateral"), on which ABL Agent has a Lien or consents to such ABL Grantor obtaining financing provided for therein being collectively referred under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law to as the “Equity be secured by ABL Collateral (such financing, a "DIP Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules"), and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt if such Cash Collateral use or DIP Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, meets the net applicable DIP Financing Conditions, then Term Loan Agent unconditionally agrees that it will consent to such Cash Collateral use or raise no objection to such DIP Financing, as applicable, and, if DIP Financing is involved, Term Loan Agent will subordinate its Liens in the ABL Collateral (and in any other assets of the ABL Grantors that may serve as collateral (including avoidance actions, or the proceeds contemplated by thereof) for such DIP Financing) to the Equity Commitment LettersLiens securing such DIP Financing. If such Cash Collateral use or DIP Financing, as applicable, meets some, but not all, of the applicable DIP Financing Conditions, then Term Loan Agent unconditionally agrees that it will only withhold its consent to such Cash Collateral use or will only raise an objection to such DIP Financing based upon the DIP Financing Condition(s) which are not met and will not withhold its consent or object on any other basis and, if DIP Financing is involved and any permitted objection of Term Loan Agent is withdrawn, overruled, or otherwise eliminated, Term Loan Agent will subordinate its Liens in the ABL Collateral (and in any other assets of the ABL Grantors that may serve as collateral (including avoidance actions, or the proceeds thereof) for such DIP Financing) to the Liens securing such DIP Financing. Term Loan Agent agrees that it shall not, and nor shall any of the net proceeds contemplated Term Loan Claimholders, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by a Lien on the Debt Financing Commitment LetterABL Collateral senior to or pari passu with the Liens securing the ABL Priority Debt. If, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with any Cash Collateral use or DIP Financing, any Liens on the Merger and ABL Collateral held by the other transactions contemplated herebyABL Claimholders to secure the ABL Debt are subject to a surcharge or are subordinated to an administrative priority claim, including payment a professional fee "carve-out," or fees owed to the United States Trustee, then the Liens on the ABL Collateral of the Aggregate Merger Consideration, Term Loan Claimholders securing the Term Loan Debt shall also be subordinated to make any repayment, repurchase such interest or refinancing of debt claim and shall remain subordinated to the Liens on the ABL Collateral of the Company and its Subsidiaries contemplated by ABL Claimholders consistent with this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 2 contracts
Samples: Intercreditor Agreement (Kronos Worldwide Inc), Credit Agreement (Kronos Worldwide Inc)
Financing. (a) The Parent has delivered to the Company true, complete and correct copies of: (i) the executed commitment letter, dated as of May 3, 2010 between Merger Sub, Bank of America, N.A., Banc of America Securities LLC, Banc of America Bridge LLC, Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, UBS Loan Finance LLC, UBS Securities LLC (the “Debt Financing Commitment”), pursuant to which, upon the terms and complete copiessubject to the conditions set forth therein, Bank of America, N.A., Banc of America Securities LLC, Banc of America Bridge LLC, Barclays Bank PLC, Credit Suisse Securities (USA) LLC, Credit Suisse AG, Cayman Islands Branch, UBS Loan Finance LLC, UBS Securities LLC have agreed to lend the amounts set forth therein (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement; and (ii) the executed equity commitment letter, dated as of May 3, 2010 among the Parent, Silver Lake Partners III, L.P., Warburg Pincus Private Equity X, L.P. and Warburg Pincus X Partners, L.P. (collectively, the “Investors”) (the “Equity Financing Commitment” and together with the Debt Financing Commitment, 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 “Equity Financing” and together with the Debt Financing, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement, and, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing respective commitments contained in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may Financing Commitments have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated terminated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to rescinded in any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinrespect. As of the date hereof, there are no other agreements, side letters or other agreements, arrangements or understandings to which the Parent or any Equity Investor Merger Sub is a party relating to any of the Financing Commitments that would adversely could affect the availability of the Equity Financing. As of the date hereof, the Financing on Commitments are in full force and effect and constitute the Closing Datelegal, valid and binding obligations of each of the Parent, Merger Sub and, to the knowledge of the Parent, the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing (including any “flex” provisions), other than as expressly set forth in the Equity Commitment Letter provided Financing Commitments. Assuming the accuracy of the representations and warranties set forth in Section 3.2 and performance by the Company of its obligations under this Agreement, the aggregate proceeds to be disbursed pursuant to the Company agreements contemplated by the Financing Commitments, in the aggregate and together with the available cash, cash equivalents and marketable securities of the Company, will be sufficient for the Parent and the Surviving Corporation to pay the aggregate Merger Consideration and to provide Interactive Data (Europe) Limited with sufficient funds to make the deposit into the Escrow Account of the amount of £53 million contemplated by the UK Pension Transitional Agreement, the amounts to be paid pursuant to Section 2.1(d) and all related fees and expenses. As of the date hereof, 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 the Parent or Merger Sub under the Financing Commitments, and the Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to the Parent on the Closing Date. The Parent has fully paid all commitment fees or other fees required to be paid on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue hereof pursuant to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Commitments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Interactive Data Holdings Corp), Agreement and Plan of Merger (Interactive Data Corp/Ma/)
Financing. Parent has delivered to the Company true, correct true and complete copies, as copies of (a) a fully executed commitment letter dated on or about the date hereofof this Agreement (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.04, the “Equity Funding Letter”) from the Guarantors providing for an equity investment in Parent, subject to the terms and conditions therein, in cash in the aggregate amount set forth therein (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (iib) a fully executed commitment letter and Redacted Fee Letter dated on or about the date of this Agreement from the financial institutions identified therein (together with all exhibits, schedulesannexes, schedules and annexes thereto) term sheets attached thereto and fee letter as amended, modified, supplemented, replaced or extended from time to time after the financial institutions identified thereindate of this Agreement in compliance with Section 5.04, collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment LettersFunding Letter, the “Financing Commitment Letters”) ), providing, subject to provide, on the terms and subject only to the conditions expressly stated therein, for debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (being collectively referred to as the “market flexDebt Financing” and other commercially sensitive informationand, in the fee letter entered into in connection together with the Debt Equity Financing, may have been redacted collectively referred to as the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereofof this Agreement, none neither of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, no such amendment or modification is contemplated, and, to the knowledge Knowledge of Parent, there is none of the respective obligations and commitments contained in such letters have been withdrawn, terminated or rescinded in any respect and, to the Knowledge of Parent, no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment termination or rescission is contemplated. Parent or Merger Sub has fully paid any and restatement, modification all commitment fees or waiver, except other fees in connection with the Financing Letters that are payable on or prior to the extent date of this Agreement and will continue to pay in full any such amendment is not prohibited under this Agreementamounts required to be paid pursuant to the terms of the Financing Letters as and when they become due and payable on or prior to the Closing Date. Assuming (i) the Equity Financing is funded in accordance with the Equity Commitment Letters Financing Letters, (ii) the accuracy in all material respects of the representations and warranties set forth in Sections 3.02, 3.05(b) and (c), 3.06(b) (as it relates to Section 5.01(b)(i)) and 3.16(a)(ii) and (iii) the Debt Financing is funded performance by the Company and its Subsidiaries of the covenants and agreements contained in accordance with the Debt Financing Commitment Letter, as applicableSections 5.01(b)(i) and 5.01(b)(ii) of this Agreement, the net proceeds contemplated by the Equity Commitment LettersFinancing Letters (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the net proceeds contemplated by maximum amount of flex (including original issue discount flex) provided under the Debt Financing Commitment Letter), will in the aggregate, aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration (and any repayment or refinancing of debt contemplated by this Agreement, the Equity Funding Letter or the Debt Commitment Letter) and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment consummation of the Aggregate Merger ConsiderationTransactions (including all amounts payable in respect of Company Stock Options, to make any repaymentCompany Restricted Shares, repurchase or refinancing of debt of the Company RSUs, Company DSUs and its Subsidiaries contemplated by PSU Awards under this Agreement, ) and to pay any other amounts required to be paid all related fees and expenses payable by Parent or Merger Sub on or prior to the Closing Date them in connection with the consummation of the transactions contemplated by this Agreement Transactions (such amount, the “Required Amount”). The Financing Letters are (x) legal, assuming the satisfaction valid and binding obligations of the conditions set forth in Section 7.02(a) Parent and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against ParentMerger Sub, Merger Sub (to the extent Parent or Merger Sub is a party thereto) as applicable, and, to the knowledge Knowledge of Parent, such each of the other Persons party thereto parties thereto, (y) enforceable in accordance with its termstheir respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, in each case except as enforcement such enforceability may be limited by bankruptcythe Bankruptcy and Equity Exception and (z) as of the date of this Agreement, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally in full force and by general principles of equityeffect. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge Knowledge of Parent, any other parties thereto, thereto under any the Equity Funding Letter or the Debt Commitment Letter. As of the Financing Commitment Letters. Assuming the date of this Agreement, assuming satisfaction or waiver of the conditions set forth in Section 7.01 to Parent’s and Section 7.02 on Merger Sub’s obligations to consummate the Closing Date, as of Offer and the date hereofMerger, Parent does not have any reason to believe that the full amount under conditions precedent set forth in the Financing Commitment Letters will not be satisfied or that the Required Amount will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the The only conditions precedent and other conditions (including the market “flex” provisions) related to the obligations of the parties thereunder Guarantors to make fund the full amount of the Equity Financing available and the lenders to Parent on fund the terms thereinfull amount of the Debt Financing are those expressly set forth in the Equity Funding Letter and the Debt Commitment Letter, respectively. As of the date hereofof this Agreement, there are no side letters or other agreements, Contracts or arrangements or understandings (except for the portions of the Redacted Fee Letter permitted to be redacted hereunder) to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability of the Equity Financing on the Closing Date, other than as expressly set forth contained in the Equity Commitment Letter provided Financing Letters delivered to the Company on or prior to the date hereof. Each Equity Commitment Letter providesof this Agreement that would (A) impair the enforceability of any of the Financing Letters, (B) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and will continue to provide, original issue discount contemplated by the Financing Letters on the date of this Agreement) such that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation aggregate amount of the Financing would be below the amount required to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on Required Amount, (C) impose new or additional conditions precedent to the availability Financing, (D) otherwise adversely modify any of Debt the conditions precedent to the Financing or (E) reasonably be expected to prevent, impair or materially delay the consummation of the Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fresh Market, Inc.), Agreement and Plan of Merger (Fresh Market, Inc.)
Financing. Parent ICE has delivered to the Company true, correct NYSE Euronext a true and complete copiesfully executed copy of the commitment letter, dated as of the date hereofApril 19, 2011 among ICE and Xxxxx Fargo Bank, National Association, Xxxxx Fargo Securities, LLC, Bank of (i) each fully executed Equity Commitment Letter America, N.A., and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the financing provided for therein being collectively referred to as the “Equity FinancingICE Financing Sources”) and (ii) a fully executed commitment letter (together with ), including all exhibits, schedules, annexes and annexes thereto) and fee amendments to such letter from in effect as of the financial institutions identified therein, date of this Agreement (the “Debt Financing ICE Commitment Letter” and”, together with the Equity NASDAQ OMX Commitment LettersLetter, the “Financing Commitment Letters”) and the provision of such funds as set forth in the ICE Commitment Letter, the “ICE Financing”, together with the NASDAQ OMX Financing, the “Financing”), pursuant to provide, on which and subject to the terms and subject only conditions thereof each of ICE Financing Sources have severally agreed to the conditions expressly stated therein, debt financing in lend the amounts set forth therein; provided that fee amounts and pricing terms, including terms of for the “market flex” and other commercially sensitive information, purposes set forth in the fee letter entered into in connection with the Debt FinancingICE Commitment Letter. The ICE Commitment Letter has not been amended, may have been redacted restated or otherwise modified or waived prior to the extentdate of this Agreement, and the respective commitments contained in each casethe ICE Commitment Letter have not been withdrawn, they are Permissible Redacted Termsmodified or rescinded in any respect prior to the date of this Agreement. As of the date hereofof this Agreement, none the ICE Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of the Financing Commitment Letters has been withdrawnICE, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, as applicable and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of ParentICE, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except the ICE Financing Sources. Subject to the extent any such amendment is not prohibited under this Agreement. Assuming terms and conditions of the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing ICE Commitment Letter, as applicableassuming the accuracy of NYSE Euronext’s representations and warranties contained in Section 3.1(b) and assuming compliance by NYSE Euronext in all material respects with its covenants contained in Article IV, the net proceeds contemplated by from the Equity Commitment LettersICE Financing, together with other financial resources of ICE, including cash on hand and marketable securities of ICE on the net proceeds contemplated by the Debt Financing Commitment LetterClosing Date, will will, in the aggregate, be sufficient for Parentthe satisfaction of all of the obligations of ICE under this Agreement, Merger Sub and including the Surviving Corporation to pay the payment of any amounts required to be paid pursuant to Article II and of all fees and expenses reasonably expected to be incurred in connection with the Merger and the other transactions contemplated hereby, including payment herewith. As of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing date of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent (i) (assuming the accuracy of NYSE Euronext’s representations and warranties contained in Section 3.1(g)) no event has occurred that (with or Merger Sub without notice or lapse of time or both) would constitute a breach or default, in each case, on or prior the part of ICE under the ICE Commitment Letter or, to the Closing Date in connection with the consummation knowledge of ICE, any of the transactions contemplated by this Agreement ICE Financing Sources, and (the “Required Amount”), assuming ii) subject to the satisfaction of the conditions set forth contained in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent5.1, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent ICE has no reason to believe that any 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 Merger Sub or, conditions to the knowledge of Parent, ICE Financing will not be satisfied or that the ICE Financing or any other parties thereto, under any of the Financing Commitment Letters. Assuming funds necessary for the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as all of the date hereof, Parent does not have any reason obligations of ICE under this Agreement and of all fees and expenses reasonably expected to believe that the full amount under the Financing Commitment Letters be incurred in connection herewith will not be available to Parent or Merger Sub ICE on the Closing Date. As of the date hereof, the Equity Commitment Letter contains ICE has fully paid all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters commitment fees or other agreementsfees required, arrangements or understandings as applicable, to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or be paid prior to the date hereof. Each Equity of this Agreement pursuant to the ICE Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nasdaq Omx Group, Inc.), Agreement and Plan of Merger (Intercontinentalexchange Inc)
Financing. Parent (a) SiriusXM has delivered to the Company true, correct Liberty and SplitCo true and complete copiescopies of an executed debt commitment letter and any related term sheet, dated as of the date hereof, of hereof (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, or the “Financing Commitment LettersCommitments”) ), from the lenders party thereto (the “Lenders”), pursuant to providewhich, on and subject to the terms and subject only conditions of which, the Lenders have committed to the conditions expressly stated therein, debt provide SiriusXM Radio with financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of described therein (the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms”). As of the date hereof, none each of the Financing Commitment Letters has been withdrawnCommitments is a legal, terminated, repudiated, rescinded, amended, amended valid and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, binding obligation of SiriusXM Radio and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableSiriusXM, the net proceeds contemplated by the Equity Commitment LettersLenders, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization or fraudulent conveyance, reorganization, moratorium and similar Applicable Laws of general applicability affecting creditors’ rights generally and by general principles of equity. As of the date hereof, each of the Financing Commitment Letters are Commitments is in full force and effect effect, and assuming the satisfaction or waiver none of the Financing Commitments has been withdrawn, rescinded or terminated or otherwise amended, supplemented or modified in any respect and no waiver has been granted thereunder, no such amendment, supplement, waiver or modification is contemplated, and, to the Knowledge of SiriusXM, no withdrawal or rescission thereof is contemplated (it being understood that the exercise of any “market flex” provisions contained in the Fee Letter provided to Liberty on the date hereof shall not be deemed a withdrawal, rescission, amendment, supplement, modification or waiver). As of the date hereof, neither SiriusXM Radio, nor to the Knowledge of SiriusXM, any Lender is in breach of any of the material terms or conditions set forth in Section 7.01 any of the Financing Commitments. As of the date hereof, to the knowledge of SiriusXM, assuming the accuracy of the representations and Section 7.02 warranties set forth in Article III and Article IV, there is no fact or occurrence existing on the Closing Date, Parent has no reason to believe that any event has occurred whichdate hereof that, 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under (A) result in any of the conditions in the Financing Commitment Letters. Assuming Commitments not being satisfied on a timely basis at or prior to the satisfaction time that the Closing is required to occur pursuant to the terms of this Agreement or (B) constitute a breach by SiriusXM Radio or any Lender under the terms and conditions of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Debt Commitment Letters will not be available to Parent or Merger Sub on the Closing DateLetter. As of the date hereof, no Lender has notified SiriusXM or SiriusXM Radio of its intention to terminate any Financing Commitments or not provide the Equity Commitment Letter contains all Financing. Assuming (1) the Financing is funded in accordance with its terms and conditions and (2) the satisfaction of the conditions precedent to each of SiriusXM’s obligations to consummate the Merger set forth in Section 7.1 and Section 7.2, the Financing will, together with other conditions funds available to SiriusXM, provide SiriusXM and its Subsidiaries with cash proceeds on the Closing Date sufficient for the satisfaction in full of all cash obligations required to consummate the Transactions on the Closing Date including, but not limited to, payment of any fees and expenses due and owing under the Debt Commitment Letter and Fee Letter on the Closing Date (such amounts, collectively, the “Financed Amounts”). SiriusXM Radio has paid in full any and all commitment or other fees required by the Debt Commitment Letter and the Fee Letter that are due as of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereindate hereof. As of the date hereof, there are no side letters letters, arrangements or other agreements, Contracts or arrangements of any kind relating to the Financing (other than as set forth in the Debt Commitment Letters, the Fee Letter and the Engagement Letters) that could affect the availability, conditionality, enforceability or understandings aggregate principal amount of the Financing contemplated by the Debt Commitment Letter. As of the date hereof, there are no conditions precedent related to which Parent the funding of the full amount of the Financing or any Equity Investor is a party contingencies that would adversely affect permit the Lenders to reduce the total amount of the Financing below the amount necessary to pay the Financed Amounts (including any condition or other contingency relating to the amount or availability of the Equity Financing on the Closing Datepursuant to any “flex” provision), other than as expressly explicitly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Commitments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sirius Xm Holdings Inc.), Agreement and Plan of Merger (Liberty Media Corp)
Financing. Parent has delivered to the Company true, correct true and complete copiescopies of (i) the commitment letter with respect to the senior credit facilities, dated as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) among Parent and Deutsche Bank Securities Inc., Deutsche Bank Trust Company Americas and JPMorgan Chase Bank and (ii) a fully executed the commitment letter with respect to the first lien mortgage loan, dated as of the date hereof, among Parent and German American Capital Corporation, Deutsche Bank AG, New York Branch and JPMorgan Chase Bank (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified thereincollectively, the “Debt Financing Commitment LetterCommitments”), pursuant to which the lenders party thereto committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing”), and (iii) the equity commitment letter, dated as of the date hereof, from FC Investor, LLC (the “Equity Financing Commitment” and, together with the Equity Commitment LettersDebt Financing Commitments, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich such parties have committed, on subject to the terms and subject only thereof, to invest the conditions expressly stated therein, debt financing in the cash amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flexEquity Financing” and other commercially sensitive informationand, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountFinancing”). The Financing Commitments are in full force and effect and are legal, assuming the satisfaction valid and binding obligations of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such the other Persons party thereto in accordance with its termsparties thereto. None of the Financing Commitments has been or will be amended or modified, except as enforcement may be limited by bankruptcyconsistent with Section 7.9(c), insolvency, reorganization and the respective commitments contained in the Financing Commitments have not been withdrawn or similar Applicable Laws affecting creditors’ rights generally and by general principles rescinded in any respect as of equitythe date hereof. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, under any Financing Commitment and subject to the knowledge of Parent, any other parties thereto, under any accuracy of the Financing Commitment Letters. Assuming representations and warranties of the Company set forth in Article IV and the satisfaction of the conditions set forth in Section 7.01 Sections 8.1 and Section 7.02 on the Closing Date, as of the date 8.2 hereof, neither Parent does not have nor Merger Sub has any reason to believe that the full amount under it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it in any of the Financing Commitment Letters will not be available Commitments on or prior to Parent or Merger Sub on the Closing Date. As The funds contemplated to be provided by the Financing Commitments would be sufficient to enable Parent to make or cause to be made payments of the date hereofMerger Consideration as provided herein (including for the Company Options as provided herein), all other necessary payments by it, Merger Sub or the Equity Commitment Letter contains Surviving Corporation in connection with the Merger (including the repayment of outstanding indebtedness of the Surviving Corporation) and all of the related fees and expenses. There are no conditions precedent and or other conditions contingencies to the obligations funding of the parties thereunder to make Financing other than as set forth in the full amount of the Equity Financing available to Parent on the terms thereinCommitments. As of the date hereof, there There are no side letters or other agreements, contracts or arrangements (except for customary fee letters and engagement letters) related to the funding or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability investing, as applicable, of the Equity full amount of the Debt Financing on the Closing Date, other than as expressly set forth in or contemplated by the Equity Commitment Letter provided to the Company on or prior to Debt Financing Commitments. As of the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and or Merger Sub acknowledge has fully paid, or caused to be fully paid, any and agree that their obligation all commitment fees which are due and payable with respect to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Commitments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Station Casinos Inc), Agreement and Plan of Merger (Station Casinos Inc)
Financing. (a) Neither Parent has delivered nor Merger Sub shall agree to or permit any termination, amendment, replacement, supplement or other modification of, or waiver of any of its rights under, the Debt Commitment Letter without the Company’s prior written consent if such termination, amendment, replacement, supplement, modification or waiver would (i) add new conditions (or modify any existing condition in a manner adverse to Merger Sub) to the consummation of the Debt Financing, (ii) reduce the amount of the Debt Financing such that the aggregate funds that would be available on the Closing Date, together with other immediately available financial resources of Parent, would not be sufficient to pay the Required Funding Amount, (iii) materially and adversely affect the ability of Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or (iv) reasonably be expected to prevent, materially delay or materially impair the consummation of the Merger and the other transactions contemplated hereby; provided, however, that the Commitment Letter may be amended or supplemented to add lenders, lead arrangers, underwriters, bookrunners, syndication agents or similar entities that had not executed the Commitment Letter as of the date hereof. Parent shall reasonably promptly deliver to the Company true, correct and complete copiescopies of any such amendment, as replacement, supplement or other modification or waiver of the date hereofDebt Commitment Letter. Parent shall have the right to substitute, with proceeds of (i) each fully executed Equity capital markets, securities or other financing transactions, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter (by reducing commitments under the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, in each case so long as such proceeds received by Parent or Merger Sub, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms amount of the “market flex” proceeds contemplated from the Financing, after giving effect to such reduction of the commitments under the Debt Commitment Letter, together with cash on hand and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate available resources of Parent, to the knowledge of Parentwill, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parentnot less than the Required Funding Amount. For purposes of this Section 8.12, Merger Sub and (1) the Surviving Corporation term “Debt Financing” shall be deemed to pay include the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries financing contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Debt Commitment Letter is enforceable against Parentas amended, Merger Sub (to the extent Parent replaced, supplemented, modified or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto waived in accordance with its termsthis Section 8.12 (including any Alternative Financing), except and (2) the term “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter as enforcement may be limited by bankruptcyamended, insolvencyreplaced, reorganization supplemented, modified or similar Applicable Laws affecting creditors’ rights generally waived in accordance with this Section 8.12 and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason any commitment letters related to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Alternative Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American National Group Inc), Agreement and Plan of Merger (Brookfield Asset Management Reinsurance Partners Ltd.)
Financing. Parent has delivered to the Company truetrue and correct copies of an executed commitment letter, correct together with the related fee letter (subject to customary redactions), each in effect as of the date of this Agreement from the financial institutions party thereto (together, as they may be amended, modified or replaced in accordance with this Section 5.14, the “Debt Commitment Letter”), to provide debt financing in an aggregate amount set forth therein and complete copiessubject to the terms and conditions set forth therein (together with any replacement debt financing in respect thereof, being collectively referred to as the “Debt Financing”). As of the date of this Agreement, the Debt Commitment Letter has not been amended or modified in any manner, and to the Knowledge of Parent, no amendment or modification of the Debt Commitment Letter that will reduce the amount of Debt Financing or materially increase the conditionality of such Debt Financing is contemplated, provided, however, Parent may amend, supplement, modify or replace the Debt Commitment Letter as in effect at the date hereof (a) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, (b) to increase the amount of indebtedness, (c) to effectuate “flex” terms or (d) to replace the commitment under the Debt Commitment Letter by the amount of the commitment obtained on the Term Facility Effective Date as contemplated by the Debt Commitment Letter. As of the date of this Agreement, the commitment contained in the Debt Commitment Letter has not been terminated, reduced, withdrawn or rescinded in any respect and, to the Knowledge of Parent, no such termination, reduction, withdrawal or rescission is contemplated other than expressly contemplated thereunder. Parent has paid in full any and all commitment fees or other fees and amounts in connection with the Debt Commitment Letter that are payable on or prior to the date of this Agreement and, as of the date of this Agreement, the Debt Commitment Letter is in full force and effect and is the valid, binding and enforceable (in accordance with its terms) obligation of Parent and, to the Knowledge of Parent, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred other parties thereto, subject to as the “Equity Financing”) applicable bankruptcy, insolvency, reorganization, moratorium and (ii) a fully executed commitment letter (together with all exhibits, schedules, similar Laws affecting creditors’ rights and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only remedies generally. There are no conditions precedent or other contingencies related to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms funding of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with full amount (or any portion) of the Debt Financing, may have been redacted other than as expressly set forth in the Debt Commitment Letter, including any condition or other contingency relating to the extent, in each case, they are Permissible Redacted Terms. As availability of the date hereof, none of the Debt Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related pursuant to any Person that is not an Affiliate of Parent“flex” provision, to other than as expressly set forth in the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this AgreementDebt Commitment Letter. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will together with available cash on hand at Parent and the Company, will, in the aggregate, be sufficient for Parent, Merger Sub Parent and the Surviving Corporation Company to pay all of the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid provided by Parent or Merger Sub on or prior to the Closing Date in connection with for the consummation of the transactions contemplated by this Agreement (Agreement, including the “Required Amount”), assuming amounts payable in connection with the satisfaction consummation of any of the conditions set forth in Section 7.02(aMergers, all related fees and expenses required to be paid as of the date of the consummation of the Mergers and the funds to be provided by (or on behalf of) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (Parent to the extent Parent Company to enable the Company to fund the repayment or Merger Sub is a party thereto) and, to refinancing of the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityCompany Credit Agreements. As of the date hereofof this Agreement, there are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter that could affect the availability of the Debt Financing contemplated by the Debt Commitment Letters are in full force and effect Letter (other than original issue discount provisions as part of the “flex” terms). As of the date of this Agreement and assuming the satisfaction or waiver (to the extent permitted by law) of the conditions set forth in Section 7.01 to Parent’s and Section 7.02 on Merger Subs’ obligation to consummate the Closing DateMergers, Parent has (a) no reason to believe that any event has occurred which, which (with or without notice, lapse of time or both, would or would reasonably be expected to ) could constitute a default or breach on or failure to satisfy a condition by Parent under the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any terms and conditions of the Financing Debt Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 Letter and Section 7.02 on the Closing Date, as of the date hereof, (b) Parent does not have any reason to believe that any of the full amount under conditions to the Debt Financing Commitment Letters will not be satisfied by Parent on a timely basis or that the Debt Financing will not be available to Parent or Merger Sub on the Closing Date. As date of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingClosing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fidelity National Information Services, Inc.), Agreement and Plan of Merger (Sungard Capital Corp Ii)
Financing. Parent has delivered On the Closing Date the Purchaser will have at the Closing all immediately available funds necessary to consummate the Purchase and pay the Purchase Price for the Securities to be acquired hereunder on the terms and conditions contemplated by this Agreement, and to pay any fees and expenses of or payable by Purchaser, as and when expressly contemplated by this Agreement, and to pay or otherwise perform all obligations of Purchaser under the other Transaction Documents (except with respect to the Company trueBond Offering). Purchaser is a party to and has accepted a fully executed commitment letter, correct and complete copies, dated as of the date hereofhereof (the “Equity Commitment Letter”), of from a certain Person (ithe “Equity Investor”) each fully executed pursuant to which the Equity Investor has agreed, subject to the terms and conditions thereof, to invest in Purchaser the amounts set forth therein. The Equity Commitment Letter (provides that the Company is a third-party beneficiary thereof, in accordance with and subject to the terms and conditions set forth therein, and is entitled to enforce such agreement. The equity financing provided for therein being collectively committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing”) . Purchaser has delivered to the Company a true, complete and (ii) a fully correct copy of the executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Equity Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than Except as expressly set forth in the Equity Commitment Letter provided Letter, there are no conditions precedent to the Company on obligations of the Equity Investor to provide the Equity Financing or prior any contingencies that would permit the Equity Investor to reduce the date hereoftotal amount of the Equity Financing. Each The Equity Commitment Letter providesconstitutes the legal, valid binding and enforceable obligations of Purchaser and all the other parties thereto and is in full force and effect. As of the date of this Agreement, the Equity Commitment Letter has not been modified, amended or altered, no such amendment, modification, or alteration is contemplated and none of the commitments under the Equity Commitment Letter have been terminated, reduced, withdrawn or rescinded in any respect. The Equity Commitment Letter will continue to providenot be amended, that modified or altered at any time through the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingClosing.
Appears in 2 contracts
Samples: Registration Rights Agreement (Expedia Group, Inc.), Registration Rights Agreement (Expedia Group, Inc.)
Financing. Parent has delivered to the Company true, complete and correct copies of: (i) the executed commitment letter, dated as of the date hereof by and complete copiesamong Barclays Capital, the investment banking division of Barclays Bank PLC, Barclays Bank PLC, Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Xxxxxx Xxxxxxx Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, UBS Loan Finance LLC, UBS Securities LLC and Sub (the “Debt Financing Commitment”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the parties thereto (other than Sub) have agreed to lend the amounts set forth therein, a portion of the proceeds of which will be used for the purpose of funding the Transactions (the “Debt Financing”); and (ii) the executed equity commitment letter, dated as of the date hereof, between Xxxxxxx, Dubilier & Rice Fund VIII, L.P. (the “Sponsor”) and Parent (the “Equity Financing Commitment” and, together with the Debt Financing Commitment, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, the Sponsor has committed to invest the cash amount in Parent set forth in the Equity Financing Commitment (the “Equity Financing” and together with the Debt Financing, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date of this Agreement (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 hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing respective commitments contained in the amounts set forth therein; provided that fee amounts and pricing termsFinancing Commitments have not been amended, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated terminated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to rescinded in any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinrespect. As of the date hereof, there are no agreements, side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor Sub is a party that would adversely affect relating to the availability funding or investing, as applicable, of the Equity full amount of the Financing on other than (x) as expressly set forth in the Closing DateFinancing Commitments and delivered to the Company prior to the entry into force of this Agreement and (y) the fee letter in connection with the Debt Financing Commitment (the “Fee Letter”), a redacted copy of which has been furnished to the Company prior to the entry into force of this Agreement. Parent has engaged pursuant to an engagement letter (the “Engagement Letter”) one or more investment banks that are reasonably acceptable to the Lead Arrangers (as defined in the Debt Financing Commitment) to publicly sell or privately place the Notes (as defined in the Debt Financing Commitment). As of the date hereof, the Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of Parent and Sub, as applicable, and, to the Knowledge of Parent, the other parties thereto (subject in each case to the effect of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or similar Laws relating to or affecting creditors rights generally and to general equity principles, whether considered in proceedings in equity or at law). Other than as expressly set forth in the Equity Commitment Financing Commitments, and any related Fee Letter provided or Engagement Letter or as set forth in any such documents amended after the date hereof and not in violation of the provisions hereof, there are no conditions precedent related to the Company funding of the full net proceeds of the Financing (including any “flex” provisions) under any agreement relating to the Financing to which Parent or any of its Affiliates is a party that have or would reasonably be expected to (a) impair the validity of the Financing Commitments, (b) reduce the aggregate amount of the Financing or (c) materially delay or prevent the Merger Closing. As of the date hereof, no event has occurred which would constitute a breach or default (or with notice or lapse of time or both would constitute a default) by Parent or Sub under the Financing Commitments, or, to the Knowledge of Parent, the other parties to the Financing Commitments. Parent has fully paid or caused to be fully paid all commitment fees or other fees required to be paid on or prior to the date hereofhereof pursuant to the Financing Commitments. Each Equity Commitment Letter provides, Assuming the accuracy of the representations and will continue to provide, that warranties set forth in Article IV and performance by the Company is a third party beneficiary thereof as set forth therein. of its obligations hereunder, upon receipt of the proceeds contemplated by the Financing Commitments, Parent and Merger Sub acknowledge and agree that their obligation to consummate will have access as of the Merger Closing to sufficient cash funds (including available cash held by the Company and its Subsidiaries) and borrowing capacity to pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingall amounts contemplated by this Agreement to be paid by them and to perform their respective obligations hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CD&R Associates VIII, Ltd.), Agreement and Plan of Merger (Emergency Medical Services CORP)
Financing. Parent (a) Buyer has delivered to the Company Seller a true, complete and correct copy of the executed Debt Commitment Letter and complete copiesall related fee letters (together with the Debt Commitment Letter, the “Debt Commitment Documents”) (redacted in a customary fashion as to economic terms and other commercially sensitive numbers and provisions specified in any such fee letter (including any provisions relating to “flex” terms or similar concepts), none of which could adversely affect the availability, conditionality, enforceability or amount (except by reason of any increased fees or original issue discount resulting from the “flex” terms or similar concepts contained in any such fee letter) of the Financing contemplated thereby) as in effect on the date hereof. The Debt Commitment Documents delivered to Seller have not been amended or modified in any manner prior to the date of this Agreement, and as of the date hereofof this Agreement, no such amendment is contemplated by Buyer or, to the knowledge of (i) each fully executed Equity Buyer, any other party thereto, except as expressly contemplated by the Debt Commitment Letter (Letter. As of the financing provided for therein being collectively date of this Agreement, neither Buyer nor any of its Affiliates has entered into any agreement, side letter or other arrangement of any kind relating to the Financing contemplated by the Debt Commitment Documents that would reasonably be expected to affect the availability, conditionality, enforceability or, except as contemplated under the “flex” terms or similar concepts contained in any fee letter referred to as above, amount of the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from Financing contemplated by the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing commitments contained in the Debt Commitment Letters has Letter have not been withdrawn, terminated, repudiatedreduced, rescindedwithdrawn or rescinded in any respect, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of ParentBuyer, no such termination, reduction, withdrawal or rescission is contemplated except as set forth in the Debt Commitment Letter. As of the date hereof, the Debt Commitment Letter is in full force and effect and constitutes the legal, valid, binding and enforceable obligation of Buyer and, to the knowledge of Buyer, each other Persons party thereto thereto, in accordance with its termseach case, except as enforcement may be limited by bankruptcy, insolvency, reorganization reorganization, moratorium or similar Applicable Laws laws affecting creditors’ rights generally and by general principles of equityequity (regardless of whether considered in a proceeding in equity or at law). Buyer has fully paid (or caused to be paid) any and all commitment fees and other amounts, if any, that are due and payable on or prior to the date of this Agreement in connection with the Financing. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub Buyer or, to the knowledge of ParentBuyer, any other parties thereto, party thereto under any of the Financing Debt Commitment LettersLetter. Assuming (a) the truth and accuracy of Seller’s representations and warranties hereunder, (b) compliance by Seller with its obligations hereunder and (c) the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on ARTICLE VII at the Closing DateClosing, as of the date hereof, Parent does not have any Buyer has no reason to believe that (i) it will be unable to satisfy on a timely basis any term of the full amount under Debt Commitment Letter or (ii) the Financing contemplated by the Debt Commitment Letters Letter will not be available to Parent or Merger Sub on Buyer at the Closing Dateto the extent required to pay the Required Amounts (as defined below). As There are no conditions precedent or contingencies related to the funding of the date hereof, Financing contemplated by the Equity Debt Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing DateLetter, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Conditions.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Skyworks Solutions, Inc.), Asset Purchase Agreement (Silicon Laboratories Inc.)
Financing. (a) Parent has delivered to the Company true, correct true and complete copiescopies of (i) the executed commitment letter, dated as of the date hereof, by and among Parent and the financial institutions party thereto including all exhibits, schedules and annexes to such letter in effect as of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) execution and delivery of this Agreement and (ii) a fully the executed commitment letter fee letters related thereto (together with all exhibitstogether, schedulesthe “Debt Commitment Letter,” and, and annexes thereto) and fee letter from subject to the financial institutions identified last sentence of Section 7.13(c), the provision of funds as set forth therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment LettersFinancing”) (it being understood that such fee letters have been redacted to remove fees, the “Financing Commitment Letters”) to provide, on the terms rates and subject only to the conditions expressly stated therein, debt financing amounts in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex,” if any, and other commercially sensitive informationeconomic terms that would not adversely affect the amount, in conditionality, availability or termination of the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofexecution and delivery of this Agreement, none other than the Debt Commitment Letter, there are no side letters or other written agreements, contracts or arrangements that impose conditions or other contingencies related to the funding of the Financing full amount of the Financing. As of the execution and delivery of this Agreement, there are no conditions or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Debt Commitment Letters Letter. The commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect prior to the date of this Agreement. As of the execution and delivery of this Agreement, the Debt Commitment Letter represents (A) a valid, binding and enforceable obligation of Parent and (B) to the Knowledge of Parent, a valid, binding and enforceable obligation of each other party thereto, in the case of each of clauses (A) and (B), except as may be limited by the Enforceability Limitations. As of the execution and delivery of this Agreement, (1) the Debt Commitment Letter has not been amended, restated, supplemented or otherwise modified, or compliance with any of the terms waived and (2) no commitment under the Debt Commitment Letter has been withdrawn, terminated, repudiated, rescinded, amended, amended terminated or rescinded in any respect. Parent or the Parent Subsidiaries have fully paid (or caused to be paid) any and restated or modified, no terms thereunder have been waived, all commitment fees and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person other amounts that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts are required to be paid in connection with pursuant to the Merger and the other transactions contemplated hereby, including payment terms of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub Debt Commitment Letter on or prior to the Closing Date in connection with execution and delivery of this Agreement, and will fully pay (or cause to be paid) any such amounts due at or before the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityEffective Time. As of the date hereofexecution and delivery of this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred occurred, which, with or without notice, lapse of time or both, would or would reasonably be expected to (x) constitute a breach or default or breach on the part of Parent or Merger Sub or, to the knowledge Knowledge of Parent, any other parties party to the Debt Commitment Letter, (y) to the Knowledge of Parent, provide a basis for termination of the Debt Commitment Letter by any other party thereto, under or (z) result in a failure of any condition to the funding of the full amount of the Financing Commitment Lettersor otherwise result in any portion of the Financing being unavailable at the Effective Time. Assuming the satisfaction of the conditions set forth in Section 7.01 8.1 and Section 7.02 on 8.2, Parent has no reason to believe that any of the Closing Dateconditions to funding set forth in the Debt Commitment Letter will not be satisfied, nor does Parent have knowledge, as of the date hereofexecution and delivery of this Agreement, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing made available to Parent on the Closing Date in accordance with the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (First Advantage Corp), Agreement and Plan of Merger (Sterling Check Corp.)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of Purchaser shall (i) each fully executed Equity use commercially reasonable efforts to ensure that the conditions described in the Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) are fulfilled on or before September 30, 2001 and (ii) promptly inform the Company in writing (a fully executed commitment letter "FINANCING NOTICE") if at any time (together with all exhibits, schedules, and annexes theretoA) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required Letter ceases to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming effect, (B) Purchaser becomes aware of any fact, occurrence or condition that would cause the satisfaction Commitment Letter to be terminated or waiver ineffective or any of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Datetherein not to be met, Parent has no reason to believe unless Purchaser reasonably believes that any event has occurred whichsuch fact, with occurrence or without notice, lapse of time condition may be cured by Purchaser or both, would or would reasonably be expected to constitute a default or breach on waived by the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as lender thereunder within thirty (30) calendar days of the date hereofon which Purchaser became aware of such fact, Parent does not have any reason to believe occurrence or condition, or (C) Purchaser believes that the full amount under funding pursuant to the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make in the full amount of the Equity Financing available is not likely to Parent on occur. Notwithstanding anything to the terms therein. As of contrary contained in this Agreement, in the date hereof, there are no side letters or other agreements, arrangements or understandings event that Purchaser is able to which Parent or any Equity Investor is obtain Financing from a party that would adversely affect the availability of the Equity Financing on the Closing Date, financing source other than as expressly set forth in pursuant to the Equity Commitment Letter provided on terms at least as favorable and no more burdensome to the Company on than the terms contained in the Commitment Letter, Purchaser may terminate the Commitment Letter in favor of a new commitment letter and Financing from such new or prior alternative financing source (a "New Commitment Letter"), provided that Purchaser shall not have the right to terminate the Commitment Letter in favor of a New Commitment Letter if such termination would delay the consummation of the Merger past October 15, 2001. In the event that Purchaser shall terminate the Commitment Letter in favor of a New Commitment Letter, references in this Agreement to the date Commitment Letter shall be replaced with references to the New Commitment Letter such that Purchaser's obligations with respect to delivering a Financing Notice shall apply to such New Commitment Letter, and in no event shall the replacement of the Commitment Letter for a New Commitment Letter limit the Company's termination rights in Article X hereof. Each Equity For the avoidance of doubt, any termination of the Commitment Letter provides, and will continue to provide, that the Company is in favor of a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is New Commitment Letter in accordance with Section 8.13 shall not conditioned on the availability constitute a breach of Debt Financingthis Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Grupo Grifols Sa), Agreement and Plan of Merger (Seracare Inc)
Financing. Parent has delivered to the Company true, correct true and complete copiesfully executed copies of (a) the commitment letter, dated as of the date hereofSeptember 4, among Parent and Xxxxxx Xxxxxxx Senior Funding, Inc., Bank of America, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, HSBC Bank USA, National Association and HSBC Securities (iUSA) each fully executed Equity Commitment Letter Inc. (the financing provided for therein being collectively referred to as the “Equity FinancingCommitment Letter”) and (iib) a fully executed commitment letter the fee letter, dated as of September 4, 2017, among Parent and Xxxxxx Xxxxxxx Senior Funding, Inc., Bank of America, N.A., Merrill, Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated, HSBC Bank USA, National Association and HSBC Securities (together with all exhibitsUSA) Inc. (as redacted to remove the fee amounts, schedules, pricing caps and annexes thereto) the rates and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing amounts included in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex,” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent“Redacted Fee Letter”), in each case, they are Permissible Redacted Termsincluding all exhibits, term sheets, schedules, annexes and amendments to such letters in effect as of the date of this Agreement (collectively, the “Debt Letters”), pursuant to which and subject to the terms and conditions thereof each of the “Initial Lenders” party thereto have severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, but subject to the provisions of Section 5.15 (the “Financing”)) for the purposes set forth in such Debt Letters. The Debt Letters have 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 Debt Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by the Debt Letters are in full force and effect and constitute the legal, valid and binding obligation of each of Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such the other Persons party thereto parties thereto, subject in accordance with its terms, except as enforcement may be limited by each case to applicable bankruptcy, insolvency, reorganization reorganization, moratorium or similar Applicable Laws other laws affecting generally the enforcement of creditors’ rights generally and by subject to general principles of equity. As of the date hereofof this Agreement, there are no conditions precedent or contingencies related to the funding of the full amount of the Financing pursuant to the Debt Letters, other than as expressly set forth in the Debt Letters. Subject to the terms and conditions of the Debt Letters, the net proceeds contemplated from the Financing, together with cash on hand and amounts available to be drawn on the Parent Revolving Credit Facilities are, and together with any other committed financing that replaces or supplements the Financing Commitment Letters are in full force and effect and assuming consistent with the satisfaction or waiver of the conditions terms set forth in Section 7.01 and Section 7.02 5.15 on the Closing DateDate will be, Parent has sufficient for the satisfaction of all of Parent’s obligations under this Agreement, including the payment of the Cash Consideration portion of the Merger Consideration and all fees and expenses to be incurred in connection therewith. As of the date of this Agreement, no reason to believe that any 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 on the part of Parent or Merger Sub under the Debt Letters or, to the knowledge of Parent, any other parties thereto, under any of party to the Financing Commitment Debt Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, this Agreement there are no side letters or other agreements, arrangements agreements that impose conditions or understandings contingencies to which Parent or any Equity Investor is a party that would adversely affect the availability funding of the Equity full amount of the Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided Debt Letters. Parent has fully paid all commitment fees or other fees required to the Company on or be paid prior to the date hereofof this Agreement in connection with the Financing. Each Equity Commitment Letter providesAs of the date of this Agreement, and assuming the conditions to the obligations of Parent to consummate the Merger have been satisfied or waived, Parent has no reason to believe that any of the conditions to the Financing will continue to providenot be satisfied, nor does Parent have knowledge, as of the date of this Agreement, that the Company is a third party beneficiary thereof as set forth thereinFinancing will not be made available to Parent on the Closing Date in accordance with the terms of the Debt Letters. The obligations of Parent and Merger Sub acknowledge and agree that their obligation hereunder are not subject to consummate any condition regarding Parent’s, Merger Sub’s or any other Person’s ability to obtain financing for the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingother transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (United Technologies Corp /De/)
Financing. Section 4.5 of the Parent has delivered to the Company Disclosure Schedule sets forth true, correct accurate and complete copies, as of the date hereof, copies of (ia) each fully executed Equity Commitment Letter equity commitment letters to provide equity financing to Parent and/or Merger Sub (the financing provided for therein being collectively referred to as the “Equity FinancingCommitment Letters”) ), and (iib) a fully an executed debt commitment letter and related term sheets (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, and together with the Equity Commitment Letters, the “Financing Commitment LettersCommitments”) pursuant to providewhich, on and subject to the terms and subject only conditions thereof, certain lenders have committed to the conditions expressly stated therein, debt financing provide Merger Sub with loans in the amounts set forth described therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, of which may be sufficient for Parent, Merger Sub and the Surviving Corporation used to pay the amounts required to be paid in connection with consummate the Merger and the other transactions contemplated herebyhereby (the “Debt Financing” and together with the equity financing pursuant to the Equity Commitment Letters, including payment the “Financing”). Each of the Aggregate Merger ConsiderationFinancing Commitments, to make any repaymentin the form so delivered, repurchase or refinancing is a legal, valid and binding obligation of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof’s knowledge, the other parties thereto, subject to the Bankruptcy and Equity Exception. The Financing Commitment Letters Commitments are in full force and effect and assuming the satisfaction have not been withdrawn or waiver terminated or otherwise amended or modified in any respect, and neither Parent nor Merger Sub is in breach of any of the terms or conditions set forth in Section 7.01 therein and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a default breach or breach on failure to satisfy a condition precedent set forth therein. The proceeds from the part Financing will be sufficient to consummate the Merger and the other transactions contemplated hereby, including the payment by Parent and Merger Sub of the Merger Consideration, the Option and Stock-Based Consideration, any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation, and any related refinancing of indebtedness of the Company or any of its Subsidiaries. Parent or Merger Sub or, to the knowledge of Parent, has paid any and all commitment or other parties thereto, under any of fees required by the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Commitments that are due as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters and will not be available to Parent or Merger Sub on the Closing Date. As of pay, after the date hereof, all such commitments and fees as they become due, if at all, prior to the Effective Time. There are no side letters or other agreements or arrangements (other than arrangements expressly set forth in the Financing Commitments) relating to the Financing to which Parent, Merger Sub or any of their affiliates are a party that would permit the lenders specified in the Debt Commitment Letter or the parties providing the Equity Commitment Letters to reduce their commitments or that would adversely affect the availability or timing of the Financing. The Debt Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties lenders thereunder to make the full amount of the Equity Debt Financing available to Parent on the terms therein. As , the Equity Commitment Letters contain all of the conditions precedent to the obligations of the funding party to make the equity financing thereunder available to the Parent on the terms therein, and, as of the date hereofof this Agreement, there are no side letters or other agreements, arrangements or understandings neither Parent nor Merger Sub has knowledge that it will be unable to which Parent or satisfy on a timely basis any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in conditions precedent to the Equity Commitment Letter provided to Letters or the Company on or prior to the date hereof. Each Equity Debt Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetter.
Appears in 2 contracts
Samples: __________________________________________________________________________________________________________________________ Agreement and Plan of Merger (Ceridian Corp /De/), Agreement and Plan of Merger (Comdata Network, Inc. Of California)
Financing. Parent has delivered to the Company true, correct a true and complete copiesfully executed copy of the commitment letter, dated as of May 23, 2010 among Parent, Merger Sub, Bank of America, N.A., Banc of America Bridge LLC, Banc of America Securities LLC, Barclays Bank PLC, Barclays Capital, the date hereofinvestment banking division of Barclays Bank PLC, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) General Electric Capital Corporation, GE Capital Markets, Inc., SunTrust Bank and (ii) a fully executed commitment letter (together with Sun Trust Xxxxxxxx Xxxxxxxx, Inc., including all exhibits, schedules, annexes and annexes thereto) amendments to such letter in effect as of the date hereof and excerpts of those portions of the fee letter from and engagement letter associated therewith that contain any conditions to funding or “flex” provisions or other substantive provisions (excluding only those provisions related solely to fees and economic terms agreed to by the financial institutions identified parties) regarding the terms and conditions of the financing to be provided thereby (together, the “Commitment Letter”), pursuant to which, subject to the terms and conditions thereof, the Financing Sources have severally agreed to lend the respective amounts set forth therein (the provision of such funds as set forth therein, the “Debt Financing Financing”) for the purposes set forth in such Commitment Letter” and. Parent has fully paid any and all commitment fees or other fees required by such Commitment Letter to be paid by the date hereof. The Commitment Letter (i) has not been amended, restated or otherwise modified or waived prior to the date hereof, (ii) is valid and in full force and effect, subject to applicable bankruptcy, insolvency or other similar Laws, now or hereafter in effect, affecting creditors’ rights generally and provided that the remedy of specific performance and injunctive and other forms of equitable relief may be limited by equitable defenses and the discretion of the court before which any proceeding therefor may be brought, (iii) does not contain any material misstatement by Parent or Merger Sub, and (iv) the respective commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded in any respect prior to 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 set forth in or contemplated by the Commitment Letter. Subject to the terms and conditions of the Commitment Letter, assuming the accuracy of the Company’s representations and warranties in Section 3.2(a) and Section 3.2(b) and assuming compliance by the Company with its covenants contained in Section 5.1, the net proceeds contemplated from the Financing, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, other financial resources of Parent and Merger Sub including cash on hand and marketable securities of Parent and Merger Sub on the terms and subject only to the conditions expressly stated thereinClosing Date, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive informationwill, in the fee letter entered into aggregate, be sufficient for the payment of the Required Amounts, including any amounts required to be paid by Merger Sub pursuant to Article I and Article II and also Parent’s and Merger Sub’s fees and expenses incurred in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted TermsTransactions. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modifiedto Parent’s knowledge, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing DateLetter. As of the date hereof, the Equity Commitment Letter contains all neither Parent nor Merger Sub has any reason to believe that any of the conditions precedent and other conditions to the obligations of Financing will not be satisfied or that the parties thereunder to make the full amount of the Equity Financing will not be available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing and Merger Sub on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gentiva Health Services Inc), Agreement and Plan of Merger (Odyssey Healthcare Inc)
Financing. Parent has True, accurate and complete copies of the following documents have been delivered to the Company true, correct and complete copies, as of prior to the date hereof, of : (i) each fully executed Equity Commitment Letter (the equity commitment letters to provide equity financing provided for therein being collectively referred to as the “Equity Financing”) and Parent and/or Merger Sub, (ii) a fully the Rollover Commitments, (iii) executed debt commitment letter letters and related term sheets (the “Debt Commitment Letters” and together with all exhibitsthe equity commitment letters described in clause (i), schedulesthe “Financing Commitments”) pursuant to which, and annexes thereto) subject to the terms and fee letter from conditions thereof, certain lenders have committed to provide Parent or the financial institutions identified Surviving Corporation with loans in the amounts described therein, the proceeds of which may be used to consummate the Merger and the other transactions contemplated hereby (the “Debt Financing Commitment LetterFinancing” and, together with the Equity Commitment Lettersequity financing referred to in clause (i) and the Rollover Commitments, the “Financing Commitment LettersFinancing”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereof, none each of the Financing Commitment Letters has been withdrawnCommitments, terminatedin the form so delivered, repudiatedis a legal, rescinded, amended, amended valid and restated binding obligation of Parent or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, Merger Sub and, to the extent related to any Person that is not an Affiliate Parent’s Knowledge, of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party parties thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters Commitments are in full force and effect and assuming the satisfaction have not been withdrawn or waiver terminated (and no party thereto has indicated an intent to so withdraw or terminate) or otherwise amended or modified in any respect and neither Parent nor Merger Sub is in breach of any of the terms or conditions set forth in Section 7.01 therein and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a material breach or failure to satisfy a condition precedent set forth therein or a default or breach on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any thereunder. As of the Financing Commitment Letters. Assuming date hereof, and assuming the satisfaction of the conditions set forth in Section 7.01 6.3(a) and Section 7.02 on the Closing Date(b), as of the date hereof, neither Parent does not have nor Merger Sub has any reason to believe that the full amount under it will be unable to satisfy on a timely basis any term or condition contemplated to be satisfied by it contained in the Financing Commitment Letters will not be available Commitments. Giving effect to the Rollover Commitments together with cash on hand at the Company, the proceeds from the Financing constitute all of the financing required for the consummation of the Merger and the other transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement, including the payment of the Merger Consideration and the consideration in respect of the Company Stock Options and the Company Restricted Shares under Section 2.3. Parent or Merger Sub has fully paid any and all commitment fees or other fees on the Closing Datedates and to the extent required by the Financing Commitments. As of the date hereof, the Equity Commitment Letter contains The Financing Commitments contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As Notwithstanding anything in this Agreement to the contrary, the Debt Commitment Letters may be superseded at the option of Parent or Merger Sub after the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or this Agreement but prior to the date hereofEffective Time by the New Financing Commitments in accordance with Section 5.10. Each Equity Commitment Letter providesIn such event, and will continue the term “Financing Commitment” as used herein shall be deemed to provide, that include the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation New Financing Commitments to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingextent then in effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Court Square Capital Partners II LP), Agreement and Plan of Merger (Leever Daniel H)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each a true and complete copy of a fully executed Equity commitment letter dated on or about the date of this Agreement from the Financing Sources (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced, waived or extended from time to time after the date of this Agreement in compliance with Section 5.20 (collectively, the “Commitment Letter Letter”)), and (ii) true and complete (other than with respect to redacted fees, fee amounts, pricing terms, pricing caps and other customarily-redacted economic terms, but which redacted information does not relate to or adversely affect the amount, availability, enforceability or conditionality of the Financing) copies of fully executed fee letter(s) and engagement letter(s) with respect to fees and related arrangements with respect to the Financing (collectively, the “Fee Letter”, and together with the Commitment Letter, the “Commitment Papers”), providing, subject to the terms and conditions therein, for debt financing provided for in the amounts set forth therein (being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofof this Agreement, none of the Financing Commitment Letters has Papers have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Commitment Papers have been withdrawn, terminated or rescinded in any respect and, to the knowledge Knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, termination or rescission is contemplated; provided that the existence or exercise of “market flex” or similar provisions contained in the Fee Letter shall not constitute an amendment and restatement, or modification or waiver, except to of the extent any such amendment is not prohibited under this AgreementCommitment Papers. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, Parent and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and will have sufficient cash on hand on the Surviving Corporation Closing Date to pay the aggregate Merger Consideration and all other cash amounts required payable pursuant to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any and repay and/or refinance all Indebtedness and other amounts required to be paid by Parent or Merger Sub on or prior to obligations owing as of the Closing Date in connection with pursuant to the consummation of the transactions contemplated by this Existing Company Credit Agreement (the “Required AmountRefinancing”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereofof this Agreement, the Financing Commitment Letters Papers are (y) legal, valid and binding obligations of Parent and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with their respective terms against Parent and, to the Knowledge of Parent, each of the other parties thereto (in each case, subject to bankruptcy, insolvency, reorganization, moratorium or other Laws of general applicability relating to or affecting creditors’ rights, or by principles governing the availability of equitable remedies) and (z) in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any effect. 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 on the part of Parent or Merger Sub or, to the knowledge Knowledge of Parent, any other parties thereto, party thereto under the Commitment Papers. The only conditions precedent (including any market “flex” provisions contained in the Commitment Papers) related to the obligations of the Financing Sources under the Commitment Letters. Assuming Papers to fund the satisfaction full amount of the conditions Financing are those expressly set forth in Section 7.01 the Commitment Papers and Section 7.02 on there are no contingencies that would permit the Closing Date, as Financing Sources to reduce the total amount of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing DateFinancing. As of the date hereofof this Agreement, the Equity Commitment Letter contains Parent has no reason to believe that it will be unable to satisfy on a timely basis all of the conditions precedent terms and other conditions to be satisfied by it in the obligations Commitment Papers on or prior to the Closing Date, nor does Parent have Knowledge that any of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinSources will not perform its obligations thereunder. As of the date hereofof this Agreement, there are no side letters letters, understandings or other agreements, contracts or arrangements of any kind relating to the Commitment Papers that could reasonably be expected to adversely affect the amount, availability, enforceability or understandings conditionality of the Financing contemplated by the Commitment Papers. Parent has paid in full any and all commitment fees or other fees that are required to which be paid on or before the date of this Agreement pursuant to the terms of the Commitment Papers. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Financing) by Parent or any Equity Investor is of its Affiliates or any other financing or other transactions be a party that would adversely affect the availability condition to any of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingParent’s obligations under this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Science Applications International Corp), Agreement and Plan of Merger (Engility Holdings, Inc.)
Financing. Parent has delivered to the Company true, correct true and complete copies, copies of (i) an executed commitment letter dated as of the date hereof, of (i) each fully executed Equity Commitment Letter hereof (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment LettersFee Letter (as defined below), as they may be amended, modified or replaced in accordance with Section 5.2 and together with all annexes, exhibits, schedules and other attachments thereto, the “Debt Financing Commitment LettersCommitments”) pursuant to providewhich the lender parties thereto have agreed, on subject to the terms and subject only conditions thereof, to provide or cause to be provided the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that therein (such amounts, the “Debt Financing”) and (ii) any fee amounts and letters related to the Debt Financing (with only fee amounts, dates, pricing termscaps, including terms of the “market flex” and other commercially sensitive informationeconomic terms redacted, in none of which would adversely affect the fee letter entered into in connection with amount, conditionality, termination or availability of the Debt Financing) (collectively, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Fee Letter”). As of the date hereofof this Agreement, none of the Debt Financing Commitment Letters Commitments has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded respective commitments contained in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase Commitments have not been withdrawn or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) rescinded and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except no withdrawal or rescission thereof is contemplated as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equitythe date of this Agreement. As of the date hereofof this Agreement, the Debt Financing Commitment Letters Commitments are in full force and effect and assuming constitute the satisfaction legal, valid and binding obligation of Parent and, 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 waiver similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity). There are no conditions precedent related to the funding of the conditions full amount of the Debt Financing other than as expressly set forth in Section 7.01 and Section 7.02 on the Closing DateDebt Financing Commitments. As of the date of this Agreement, Parent has no reason to believe that any event has occurred which, that (with or without notice, notice or lapse of time time, or both, ) would or would reasonably be expected to constitute a breach or default or breach on under the part of Debt Financing Commitments by Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any party to the Debt Financing Commitments. As of the date of this Agreement, assuming the satisfaction of the conditions contained in Section 6.1 and Section 6.3, 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 Commitment LettersCommitments. 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 satisfaction of the conditions set forth contained in Section 7.01 6.1 and Section 7.02 on 6.3 and that the Closing Date, as Debt Financing is funded in accordance with the terms of the date hereofCommitment Letter, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation will have, at the Effective Time, sufficient cash, available lines of credit or other sources of immediately available funds to consummate the Merger and the other transactions contemplated hereby, including payment of all amounts required to be paid pursuant to Article II, and to pay all related fees and expenses. In no event shall the Aggregate Merger Consideration is not conditioned on the receipt or availability of any funds or financing, including under the Debt FinancingFinancing Commitments, by Parent or Merger Sub or any Affiliate thereof be a condition to any of Parent’s or Merger Sub’s obligations hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (MKS Instruments Inc), Agreement and Plan of Merger (Electro Scientific Industries Inc)
Financing. Parent Buyer has delivered to the Company Seller a true, complete and correct copy of the executed commitment letter, dated as of October 28, 2012 among Xxxxxx Xxxxxxx Senior Funding, Inc., UBS Loan Finance LLC, UBS Securities LLC, Credit Suisse AG, Credit Suisse Securities (USA) LLC, and complete copiesKeyBank National Association (such commitment letter, including all exhibits, schedules, annexes and amendments thereto, collectively, the “Debt Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, Xxxxxx Xxxxxxx Senior Funding, Inc., UBS Loan Finance LLC, UBS Securities LLC, Credit Suisse AG, Credit Suisse Securities (USA) LLC, and KeyBank National Association have agreed to lend the amounts set forth therein (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement. None of the Debt Financing Commitments has been amended or modified prior to the date of this Agreement, and, as of the date hereof, of (ia) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as respective commitments contained in the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may Commitments have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has not been withdrawn, terminated, repudiated, rescindedmodified, amended, amended terminated or rescinded in any respect and restated or modified, no terms thereunder have been waived, and (b) no such withdrawal, termination, repudiation, rescission, amendment, amendment or modification is contemplated (other than amendments and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited modifications permitted under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”Section 6.5), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, Contracts or arrangements or understandings to which Parent Buyer or any Equity Investor of its Affiliates is a party that would adversely could affect the availability of the Equity Debt Financing on the Closing Date. As of the date hereof, the Debt Financing Commitments are in full force and effect and constitute the legal, valid and binding obligations of Buyer and, to the knowledge of Buyer, the other parties thereto. There are no conditions precedent 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 Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Commitments.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Patheon Inc)
Financing. Parent has True and complete copies of the following documents have been delivered to the Company trueCompany: (i) the fully executed commitment letter, correct and complete copies, dated as of the date hereofof this Agreement (the “Debt Financing Letter”), of pursuant to which Xxxxxxx Xxxxx Credit Partners L.P., JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities Inc. have committed, subject to the terms thereof, to lend the amounts set forth therein (ithe “Debt Financing”), and (ii) each the fully executed Equity Commitment Letter equity commitment letters, dated as of the date of this Agreement, from funds managed by GS Capital Partners, X.X. Xxxxxx Partners, LLC, CCMP Capital Associates, L.P., Xxxxxx X. Xxx Partners, L.P. and Warburg Pincus LLC (the financing “Equity Financing Letters” and together with the Debt Financing Letter, the “Financing Letters”), pursuant to which such parties have committed, subject to the terms thereof, to provide or cause to be provided for the cash amounts set forth therein being collectively referred to as (the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may the “Financing”). The Financing Letters are the only agreements that have been redacted entered into by MergerCo, SibCo or their respective Affiliates with respect to the extent, in each case, they are Permissible Redacted TermsFinancing. As of Prior to the date hereofof this Agreement, (i) none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder and (ii) the respective commitments contained in the Financing Letters have not been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification withdrawn or waiver has occurred, and, rescinded in any respect. Subject to the extent related to any Person that is not an Affiliate last two sentences of Parentthis paragraph, to the knowledge each of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregateform so delivered, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming is a legal, valid and binding obligation of MergerCo and the satisfaction or waiver other parties thereto. As of the conditions set forth date of this Agreement, the Debt Financing Letter, in Section 7.01 the form so delivered, is in full force and Section 7.02 on effect and is a legal, valid and binding obligation of SibCo and the Closing Date, Parent has no reason to believe that any other parties thereto. 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, MergerCo under any term or condition of the Equity Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 Letters and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have neither SibCo nor MergerCo has any reason to believe that it will be unable to satisfy by the full amount under Outside Date any term or condition of closing to be satisfied by it contained in the Equity Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing DateLetters. 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 on the Equity Commitment Letter contains all part of SibCo under any term or condition of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Debt Financing available to Parent on the terms thereinLetters. As of the date hereofof this Agreement, there are no side letters neither SibCo nor MergerCo has any 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 Debt Financing Letters. SibCo has fully paid any and all commitment fees or other agreementsfees incurred in connection with the Financing Letters that have become due and payable. Subject to its terms and conditions, arrangements the Financing, when funded in accordance with the Financing Letters, and after giving effect to the Equity Rollover Commitment, together with cash on hand from operations of the Company, will provide funds at the Closing and at the Effective Time sufficient to consummate the Merger upon the terms contemplated by this Agreement and to pay all related fees and expenses associated therewith, including payment of all amounts under Article II of this Agreement. Notwithstanding anything in this Agreement to the contrary, each of the Debt Financing Letter and the Equity Financing Letters may be superseded at the option of SibCo (in the case of the Debt Financing Letter) or understandings to which Parent or any Equity Investor is a party that would adversely affect MergerCo (in the availability case of the Equity Financing on Letters) after the Closing Datedate of this Agreement but prior to the Effective Time by instruments (the “New Financing Letters”) which replace the existing Debt Financing Letter or the existing Equity Financing Letters and/or contemplate co-investment by or financing from one or more other or additional parties; provided, other than that the terms of the New Financing Letters shall not (a) expand upon the conditions precedent to the Financing as expressly set forth in the Debt Financing Letter and/or Equity Commitment Letter provided Financing Letters, as applicable in any respect that would reasonably be expected to make such conditions less likely to be satisfied or (b) reasonably be expected to delay the Closing. In such event, the terms “Financing Letter”, “Equity Financing Letters” and “Debt Financing Letter” as used herein shall be deemed to include the New Financing Letters to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingextent then in effect.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Neubauer Joseph), Agreement and Plan of Merger (Aramark Corp/De)
Financing. Parent (a) Purchaser has delivered to Seller complete and correct copies of (i) the Company trueexecuted debt commitment letter, correct and complete copies, dated as of the date hereofof the Original Agreement, and as amended on or prior to the date of this Amended Agreement, between Purchaser and the financial institutions identified therein and the executed fee letters, fee credit letters and engagement letters associated therewith (i) each fully executed Equity Commitment Letter (provided, that the financing provided for therein being collectively referred amounts and percentages in the fee letter related to as fees, certain other economic terms and the “Equity Financing”flex” provisions included therein, but only to the extent that none of such provisions would adversely affect conditionality, may be redacted) and (ii) a fully executed such commitment letter (letter, together with all exhibits, schedules, annexes, supplements and annexes thereto) amendments thereto and any related redacted fee letter from the financial institutions identified thereinletters, collectively, the “Debt Financing Commitment Letter” andCommitment”), together with the Equity Commitment Letterspursuant to which, the “Financing Commitment Letters”) to provide, on upon the terms and subject only to the conditions expressly stated set forth therein, debt financing in the Financing Sources have agreed to lend the amounts set forth therein for the purpose of funding the transactions contemplated by this Amended Agreement, and (ii) the executed Escrow Notes and the Escrow Indenture Documents, pursuant to which, subject to satisfaction of certain conditions set forth therein; provided that fee amounts and pricing terms, including terms funds could be released from an escrow account for purposes of funding the transactions contemplated by this Amended Agreement. As of the “market flex” date hereof and other commercially sensitive informationexcept to the extent provided therein as a result of the issuance of the Escrow Notes or as otherwise permitted by Section 6.12, (x) the Debt Financing Commitment has not been amended, restated or otherwise modified or waived since copies thereof were delivered to Seller, (y) no such amendment, restatement, modification or waiver is contemplated and (z) the commitment contained in the fee letter entered into Debt Financing Commitment has not been withdrawn, terminated or rescinded in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Termsany respect. As of the date hereof, none there are, and are contemplated to be, no other agreements, side letters or arrangements (oral or written) relating to the Debt Financing Commitment (other than customary engagement letters or as expressly set forth in the Debt Financing Commitment furnished to Seller pursuant to this Section 5.07(a), but in each case of the Financing Commitment Letters has been withdrawnforegoing, terminatedwhich do not adversely affect the conditionality, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawalenforceability, termination, repudiationprincipal amount or availability of the Debt Financing). As of the date of hereof, rescissionthe Debt Financing Commitment is in full force and effect and constitutes the legal, amendment, amendment valid and restatement, modification or waiver has occurred, binding obligations of each of Purchaser and, to the extent Knowledge of Purchaser, the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other Laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at Law. There are no conditions or other contingencies related to the funding of the full amount of the Debt Financing (including any Person that is not an Affiliate of Parent“flex” provisions), to other than as expressly set forth in the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment Debt Financing Commitment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this AgreementEscrow Indenture Documents. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and (A) the Debt Financing is funded in accordance with the Debt Financing Commitment Letterand the Escrow Indenture Documents, as applicable(B) the accuracy of the representations and warranties set forth in Articles III and IV, and (C) performance by Seller and its Subsidiaries of their obligations that are required to be performed prior to the Closing, the net aggregate proceeds contemplated by to be disbursed pursuant to the Equity Commitment Letters, and the net proceeds agreements contemplated by the Debt Financing Commitment LetterCommitment, will the Escrow Notes and the Escrow Indenture Documents, together with Purchaser’s unrestricted cash on hand and other access to capital, in the aggregate, aggregate will be sufficient for Parent, Merger Sub and the Surviving Corporation Purchaser to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 Estimated Purchase Price on the Closing Date, Parent has no reason any payment required to believe that any event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected made by Purchaser pursuant to constitute a default or breach on the part of Parent or Merger Sub or, to the knowledge of Parent, Section 2.04 (if any) and all related fees and expenses and any other parties theretopayment contemplated in this Amended Agreement, under any of the Debt Financing Commitment Lettersand the Escrow Indenture Documents. Assuming the satisfaction accuracy of the conditions representations and warranties set forth in Section 7.01 Articles III and Section 7.02 on the Closing DateIV and performance by Seller and its Subsidiaries of their obligations under this Amended Agreement, as of the date hereof, Parent (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, the Escrow Notes and/or the Escrow Indenture Documents and (II) Purchaser does not have any reason to believe that any of the full amount under conditions to the Debt Financing Commitment Letters and/or the release of proceeds from escrow with respect to the Escrow Notes will not be satisfied or that the proceeds of the Debt Financing (including the release of the proceeds of the Escrow Notes from escrow) will not be available to Parent or Merger Sub Purchaser on the Closing Date. As of the date hereof, the Equity Commitment Letter contains Purchaser has fully paid or has caused to be fully paid all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters commitment fees or other agreements, arrangements or understandings fees required to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company be paid on or prior to the date hereof. Each Equity hereof pursuant to the Debt Financing Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingEscrow Indenture Documents.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Financing. Parent has delivered provided to the Company true, correct accurate and complete copiescopies of (a) fully executed equity commitment letters, dated as of the date hereof, of this Agreement (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity FinancingCommitment Letters”), as to which the Company is a named third party beneficiary, pursuant to which each of the parties listed on Exhibit D hereto (collectively, the “Investors”) has committed to provide or cause to be provided the cash amounts set forth therein to provide equity financing to Parent and/or Merger Sub, and (iib) a fully executed debt commitment letter letter, dated as of the date of this Agreement (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, and together with the Equity Commitment Letters, the “Financing Commitment LettersCommitments”) pursuant to providewhich, on and subject to the terms and subject only conditions thereof, the lenders party thereto have committed to the conditions expressly stated therein, debt financing provide Merger Sub with loans in the amounts set forth described therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required of which are to be paid in connection with used to consummate the Offer, the Merger and the other transactions contemplated herebyhereby and pay related fees and expenses (the “Debt Financing” and together with the equity financing pursuant to the Equity Commitment Letter, including payment the “Financing”). Each of the Aggregate Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and /or Merger ConsiderationSub and, to make any repaymentParent’s knowledge, repurchase or refinancing the other parties thereto. As of debt this date of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters Commitments are in full force and effect and assuming the satisfaction have not been withdrawn, rescinded or waiver terminated or otherwise amended or modified in any respect. As of the date of this Agreement, neither Parent nor Merger Sub is in breach of any of the terms or conditions set forth in Section 7.01 therein and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a default breach or breach failure to satisfy a condition precedent set forth therein on the part of Parent. Parent or Merger Sub or, to the knowledge of Parent, has paid any and all commitment or other parties thereto, under any of fees required by the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Commitments that are due as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters and will not be available to Parent or Merger Sub on the Closing Date. As of pay, after the date hereof, all such commitments and fees as they become due. There are no side letters or other agreements or arrangements relating to the Financing to which Parent, Merger Sub or any of their affiliates are a party containing additional conditions precedent to the Financing. The proceeds funded under the Financing Commitments (or any alternative financing obtained pursuant to Section 6.11), when funded in accordance with the Financing Commitments (or such alternative financing), will constitute all of the financing required for the consummation of the transactions contemplated hereby, together with not more than the Minimum Cash Amount will be sufficient for (i) the satisfaction of all Parent’s and Merger Sub’s obligations under this Agreement, including the payment of the Merger Consideration and the Option and Stock Based Consideration (including obligations under Section 1.1(e) and Section 3.2(a)) and (ii) any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation. The Debt Commitment Letter contains all of the conditions precedent to the obligations of the lenders thereunder to make the Debt Financing available to Parent on the terms therein, and the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder funding party to make the full amount of the Equity Financing equity financing thereunder available to the Parent on the terms therein. As , and, as of the date hereof, there are no side letters or other agreements, arrangements or understandings neither Parent nor Merger Sub has reason to which Parent or believe that it will be unable to satisfy on a timely basis any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in conditions precedent to the Equity Commitment Letter provided to or the Company on or prior to the date hereof. Each Equity Debt Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stealth Acquisition Corp.), Agreement and Plan of Merger (Safenet Inc)
Financing. Parent has delivered to the Company Attached hereto as Exhibit C are true, complete and correct copies of (i) the Class A Convertible Preferred Unit Purchase Agreement, by and complete copiesamong Purchaser, Rodeo Finance Aggregator LLC and GSO Rodeo Holdings LP (the “Investors”), dated as of the date hereof, pursuant to which, and subject to the terms and conditions of which, the Investors have agreed to provide equity financing (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) to Purchaser in connection with the transactions contemplated by this Agreement (the “Securities Purchase Agreement ”), and (ii) a fully an executed commitment letter (together with all exhibits, schedules, and annexes theretothe “Debt Commitment Letter”) and corresponding customarily redacted fee letter letters (none of which redacted terms affect the amount or availability of the Debt Financing or imposed any conditions on the receipt of the Debt Financing) (the “Fee Letter”) from the financial institutions identified therein, therein (the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment LettersLenders”) to provide, on subject to the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing termstherein (the “Debt Financing Commitments,” as each may be amended or replaced from time to time to the extent permitted by Section 6.18 and, including terms together with the Securities Purchase Agreement, the “Financing Commitments”) for the purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Debt Financing”). Each of the “market flex” Financing Commitments is a legal, valid and other commercially sensitive informationbinding obligation of Purchaser, in the fee letter entered into in connection with the Debt Financing, may have been redacted and to the extentKnowledge of Purchaser, in each case, they are Permissible Redacted Termsthe other parties thereto. As of the date hereof, each of the Financing Commitments is in full force and effect, and none of the Financing Commitment Letters Commitments has been withdrawn, terminated, repudiated, rescinded, amended, rescinded or terminated or otherwise amended and restated or modified, no terms thereunder have been waivedmodified in any respect, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, or modification or waiver has occurred, and, to the extent related to any Person that is contemplated. Purchaser is not an Affiliate in breach of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase terms or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) any of the Financing Commitments, and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach, default or breach on the part of Parent or Merger Sub or, failure to the knowledge of Parent, satisfy any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions condition precedent set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there Purchaser (i) has no reason to believe that any event has occurred that (with or without notice or lapse of time, or both) would constitute a breach or default under any of the Financing Commitments, (ii) is not aware of any fact, event or other occurrence that makes any of the representations or warranties of Purchaser in any of the Financing Commitments inaccurate in any material respect and (iii) has no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments will not be satisfied on a timely basis or that the Financing contemplated by the Financing Commitments will not be made available on the Closing Date. The Investors have not, and as of the date, no Financing Source has notified Purchaser of their intention to terminate all or any portion of the Financing Commitments or not to provide the Financing. The net cash proceeds from the Financing (including any Alternative Financing), together with available cash on hand, will be sufficient to satisfy all of Purchaser’s obligations hereunder, including the payment of the Purchase Price and any other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement. Purchaser has paid in full any and all commitment or other fees required by the Debt Financing Commitments that are due as of the date hereof, and will pay, after the date hereof, all such fees as they become due. There are no conditions precedent or contingencies to the obligations of the parties under the Financing Commitments (including pursuant to any “flex” provisions in the related fee letter or otherwise) to make the full amount of the Financing available to Purchaser on the terms therein except as expressly set forth in the unredacted portion of the Financing Commitments. There are no side letters or other agreements, understandings, contracts or arrangements (written, oral or understandings otherwise) related to which Parent the Financing (other than the Financing Commitments). There are no conditions precedent, contingencies or requirements to such funding other than any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as conditions expressly set forth in the Equity Commitment Letter provided unredacted portions of the Financing Commitments nor any reduction to the Company aggregate amount available under the Financing Commitments on the Closing Date (nor any term or prior condition which would have the effect of reducing the aggregate amount available under the Financing Commitments on the Closing Date). Subject to the Company’s compliance with this Agreement and the satisfaction (or waiver) of the conditions set forth in Section 9.1 and Section 9.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions), as of the date hereof. Each Equity Commitment Letter provides, and Purchaser has no reason to believe that it will continue be unable to providesatisfy on a timely basis any conditions to the funding of the full amount of the Financing, or that the Company is a third party beneficiary thereof as set forth thereinFinancing will not be available on the Closing Date. Parent and Merger Sub acknowledge and agree that their obligation to consummate For the Merger and pay the Aggregate Merger Consideration avoidance of doubt, it is not conditioned on a condition to Closing under this Agreement for Purchaser to obtain the availability of Debt Financing or any Alternative Financing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Genesis Energy Lp), Stock Purchase Agreement (Tronox LTD)
Financing. Parent will have at the Acceptance Time the funds necessary to consummate the Transactions, including the payment by Parent and Merger Sub of the aggregate amount of the Offer Price and Merger Consideration, other amounts payable pursuant to Article II, 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. Parent has delivered to the Company true, (i) a correct and complete copiesfully executed copy of the commitment letter, dated as of November 24, 2015, among Pinnacle Foods Finance LLC, a Delaware limited liability company and a wholly owned subsidiary of Parent (the “Borrower”), Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Bank of America, N.A., including all exhibits, schedules, annexes and amendments to such letter in effect as of the date hereof, of (i) each fully executed Equity Commitment Letter this Agreement (the financing provided for therein being collectively referred to as the “Equity FinancingCommitment Letter”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and copy of the fee letter from referenced in the financial institutions identified therein, Commitment Letter (the “Debt Financing Commitment Fee Letter” and, together with the Equity Commitment LettersLetter, the “Financing Commitment Letters”) (it being understood that the Fee Letter has been redacted in a customary manner). Pursuant to, and subject to provide, on the terms and subject only conditions of, the Commitment Letter, the lender thereunder (together with any other lenders who may be added pursuant to the conditions expressly stated thereinterms thereof, debt financing in the “Lenders”) has committed to lend the amounts set forth therein (the provision of such funds as set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” Financing”) for the purposes set forth in such Commitment Letter. Neither the Commitment Letter nor the Fee Letter has been amended, restated or otherwise modified or waived prior to the execution and other commercially sensitive informationdelivery of this Agreement, and the respective commitments contained in the fee letter entered into Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in connection with the Debt Financing, may have been redacted any respect prior to the extent, in each case, they are Permissible Redacted Termsdate of this Agreement. As of the date hereofof this Agreement, none the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, Borrower and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, each of the other parties thereto, enforceable in accordance with its terms against the Borrower and, to the knowledge Knowledge of Parent, there is no condition existing that would require any such withdrawaleach of the other parties thereto, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except subject to the extent effect of any such amendment is not prohibited under this Agreementapplicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effect of general principles of equity. Assuming There are no conditions precedent related to the Equity funding of the full amount of the Financing is funded in accordance with pursuant to the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, other than as applicable, expressly set forth in the Commitment Letter. The net proceeds contemplated by of the Equity Commitment LettersFinancing will, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregateaggregate and together with any cash or other funds available to Parent (including from the Borrower) and Merger Sub, be sufficient (after netting out any fees, original issue discount, expenses and similar premiums and charges payable pursuant to the Financing Letters, including after giving effect to the maximum amount of any “flex” provisions) 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 repayment of any existing indebtedness of the Company in connection with the Transactions and the payment of all fees and expenses reasonably expected to be incurred by Parent, the Borrower, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger Transactions and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityFinancing. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has (i) no reason to believe that any event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would or would reasonably be expected to constitute a default default) or breach result in a failure to satisfy a condition precedent, in each case, on the part of Parent or Merger Sub the Borrower or, to the knowledge Knowledge of Parent, any other parties theretoparty to the Commitment Letter, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 Letter, and Section 7.02 on the Closing Date, as of the date hereof, (ii) Parent does not have any reason to believe that any of the full amount under conditions to the Financing Commitment Letters will not be satisfied or that the Financing or any other funds necessary for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement and the repayment of any existing indebtedness of the Company in connection with the Transactions and the payment of all fees and expenses reasonably expected to be incurred by Parent, the Borrower, Merger Sub and the Surviving Corporation in connection with the Transactions and the Financing will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains Parent has fully paid (or caused to be paid) all of the conditions precedent and commitment fees or other conditions fees to the obligations of the parties thereunder extent required to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company be paid on or prior to the date hereofof this Agreement in connection with the Financing. Each Equity Commitment Letter provides, and will continue to provide, that the Company Neither Parent nor any Affiliate of Parent is a third party beneficiary thereof as set forth thereinto any side letters or other Contracts (other than the Financing Letters) that could affect the availability of the full amount of the Financing. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is obligations under this Agreement are not contingent or conditioned in any manner on the availability of Debt Financingobtaining any financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Boulder Brands, Inc.), Agreement and Plan of Merger (Pinnacle Foods Inc.)
Financing. Parent has delivered (a) The Purchaser and Finance Merger Sub: (i) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to obtain the Debt Financing and the Equity Financing on the terms and conditions (including flex provisions) described in the Debt Commitment Letter and the Fee Letter and the Equity Commitment Letters, respectively, to the Company trueextent necessary to consummate the Contemplated Transactions, correct including seeking to enforce the terms of the Equity Commitment Letters; provided, however, that in no event shall the Purchaser and complete copiesFinance Merger Sub be required to initiate any Action to cause any Committed Lender to fund the Debt Financing; (ii) shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement, in each case, if such amendment, modification, consent or waiver (x) reduces the aggregate amount of the Debt Financing below an amount, together with any available cash of the Purchaser and Finance Merger Sub, required to pay the Required Payment Amount, (y) imposes any new or additional conditions to the Debt Financing or otherwise adversely expands, amends or modifies any other provision of the Debt Commitment Letter, the Fee Letter or such Definitive Debt Agreement (including, without limitation, the Debt Financing Conditions), in a manner that would reasonably be expected to prevent or materially delay the Closing, or (z) adversely impacts the ability of the Purchaser and Finance Merger Sub to enforce its rights prior to Closing against the Committed Lenders or any other party to the Debt Commitment Letter, the Fee Letter or any Definitive Debt Agreement to timely consummate the Contemplated Transactions; provided, that the Purchaser and Finance Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof; provided that the aggregate principal amount of the Debt Financing is not reduced as a result of such amendment unless, of (i) each fully executed contemporaneously with such amendment, the Equity Commitment Letter Letters are amended to increase the commitments thereunder in respect of the Equity Financing by an amount equal to such reduction in the committed Debt Financing; (the financing provided for therein being collectively referred iii) shall not permit any amendment or modification to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibitsbe made to, schedulesor consent to any waiver of any provision or remedy under, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters; (iv) shall not permit, or consent to, any assignment of rights or obligations under the “Financing Debt Commitment Letter other than as explicitly permitted pursuant to the proviso to clause (ii) above; and (v) shall not permit, or consent to, any assignment of rights or obligations under the Equity Commitment Letters”; provided, that any Sponsor may allocate all or a portion of its obligations to fund the Commitment Amount (as defined in the applicable Equity Commitment Letter) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing an Affiliate (as defined in the amounts set forth therein; provided that fee amounts and pricing termsapplicable Equity Commitment Letter) or to an entity sponsored, including terms of the “market flex” and other commercially sensitive informationco-sponsored, managed by or advised by an Affiliate (as defined in the fee letter entered into applicable Equity Commitment Letter) of such Sponsor, but without such allocation relieving or otherwise diminishing the obligation of such Sponsor to fund the Commitment Amount in connection with the Debt Financingfull; and provided, may have been redacted to the extentfurther, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, allocation shall not relieve such Sponsor of its obligations under the applicable Equity Commitment Letter to fund such Sponsor’s entire Commitment Amount (as defined in the applicable Equity Commitment Letter) except to the extent the entire Commitment Amount (prior to giving effect to such allocation and without giving effect to any such amendment is not prohibited amount funded under this Agreement. Assuming the any other Equity Financing Commitment Letter) is funded to the Purchaser in accordance with the terms of such Equity Commitment Letters and Letter. The Purchaser shall promptly deliver to the Company copies of any such amendment, modification, consent or waiver. For purposes of this Agreement, references to “Financing” or “Debt Financing is funded in accordance with the Debt Financing Commitment Letter, Financing,” as applicable, shall include the net proceeds financing contemplated by the Equity Commitment LettersLetters as permitted to be amended, modified or waived by this Section 7.07(a), and the net proceeds contemplated by the references to “Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (” shall include such documents to the extent Parent amended, modified or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except waived as enforcement may be limited permitted by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in this Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing7.07(a).
Appears in 2 contracts
Samples: Equity Purchase Agreement (Griffin-American Healthcare REIT III, Inc.), Equity Purchase Agreement (NorthStar Healthcare Income, Inc.)
Financing. Parent has delivered to the Company true, complete and correct and complete copiescopies of (a) the executed debt commitment letter, dated as of November 6, between Parent and the date hereof, of Debt Financing Sources party thereto (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with including all exhibits, schedules, and annexes thereto) , and the executed fee letter from the financial institutions identified thereinassociated therewith redacted in a manner as described below, collectively, the “Debt Financing Commitment Letter” andCommitments”), pursuant to which the Debt Financing Sources party thereto have committed, subject only to the satisfaction of the terms and conditions set forth therein, to lend the amounts set forth therein (the “Debt Financing”) and (b) executed equity commitment letters, dated as of the date hereof, among Parent and each of the Guarantors (including all exhibits, schedules and annexes thereto, the “Equity Financing Commitment”, and together with the Equity Commitment LettersDebt Financing Commitments, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich each of the Guarantors has committed, on subject to the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of to invest the cash amount set forth therein (the “market flex” Equity Financing”, and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As “Financing”) for the purpose of the date hereof, none funding a portion of the Financing Uses. The Equity Financing Commitment Letters has provides that the Company is a third-party beneficiary thereof to the extent set forth therein. None of the Financing Commitments have been withdrawn, terminated, rescinded, repudiated, rescinded, amended, amended and restated modified or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or supplemented prior to the Closing Date in connection with the consummation date of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent by Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such each of the other Persons parties party thereto and no such withdrawal, termination, rescission, repudiation, amendment, modification or supplementation is contemplated by Parent and, to the knowledge of Parent, each of the other parties thereto and the respective commitments contained in accordance the Financing Commitments have not been withdrawn, terminated, rescinded or repudiated in any respect as of the date hereof. Except for the fee letters referenced in the Debt Financing Commitments (complete copies of which have been provided to the Company, with only fee amounts and the economic terms related to the “market flex” provisions contained therein redacted (provided that Parent represents and warrants that the redactions in such fee letters do not relate to the imposition of any new conditions (or the modification or expansion of any existing conditions) or any reduction in the amount of the Debt Financing or otherwise relate to the termination, enforceability or availability of the Debt Financing), there are no side letters or Contracts to which Parent or any of its termsAffiliates is a party related to the availability or conditionality, except as enforcement may be limited by bankruptcyapplicable, insolvency, reorganization of the Financing or similar Applicable Laws affecting creditors’ rights generally the Transactions other than as expressly set forth in the Financing Commitments delivered to the Company on or prior to the date hereof. Parent has fully paid any and by general principles of equityall commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitment Letters Commitments are in full force and effect and assuming are the satisfaction or waiver legal, valid, binding and enforceable obligations of Parent and, to the knowledge of Parent, each of the other parties party thereto and neither is Parent aware of any fact or occurrence existing on the date hereof or that would or would reasonably be expected to cause the Financing Commitments to be ineffective. Assuming that the conditions to the obligation of Parent to consummate the Merger set forth in Section 7.01 7.1 and Section 7.02 on 7.2 have been satisfied, as of the Closing Datedate hereof, Parent has there are no reason conditions precedent related to believe that the funding of the full amount of the Financing (including pursuant to any “market flex” provisions in the fee letter or otherwise), other than as expressly set forth in the Financing Commitments delivered to the Company prior to the date hereof. As of the date hereof, to the knowledge of Parent, 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 on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, party thereto under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 Commitments, (ii) constitute a failure to satisfy a condition precedent on the Closing Date, as part of the date hereof, Parent does not have or any reason to believe that the full amount other party thereto under the Financing Commitment Letters will not Commitments or (iii) result in any portion of the amount to be available to Parent provided or Merger Sub funded in accordance with the Financing Commitments being unavailable on the Closing Date. As of Assuming that the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations obligation of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger set forth in Section 7.1 and Section 7.2 have been satisfied, and assuming the Financing is funded in accordance with the Financing Commitments, Parent will have on the Closing Date funds sufficient to (i) pay the Aggregate aggregate Per Share Merger Consideration and the other payments under Article II, (including, to the extent required pursuant to Section 6.19, the aggregate IRS Matter Incremental Per Share Merger Consideration), (ii) pay any and all fees and expenses required to be paid by Parent and the Surviving Entity in connection with the Merger and the Financing, (iii) pay for any refinancing of any outstanding indebtedness of the Company or its subsidiaries contemplated by this Agreement or the Financing Commitments, and (iv) satisfy all of the other payment obligations of Parent and the Surviving Entity contemplated hereunder (clauses (i) through (iv), the “Financing Uses”). Parent affirms that it is not conditioned on a condition to the availability Closing or any of Debt Financingits other obligations under this Agreement that Parent obtain the Financing or any other financing for or related to any of the Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CorePoint Lodging Inc.), Agreement and Plan of Merger (CorePoint Lodging Inc.)
Financing. The Parent has delivered to the Company a true, correct complete and complete copiesfully executed copy of a commitment letter, dated as of the date hereof, of hereof (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with including all related exhibits, schedules, annexes, supplements and annexes term sheets thereto) , and including any related fee letter as described below (provided that the fee amounts, “market flex,” pricing terms, pricing caps and other commercially sensitive terms in any such fee letter may be redacted), as each of the foregoing may be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the financial institutions identified thereindate hereof in compliance with Section 4.12, the “Debt Financing Commitment Letter” and”), together from the Financing Parties party thereto confirming their respective commitments to provide the Parent with the Equity Commitment Lettersdebt financing, the “Financing Commitment Letters”) subject to provide, on the terms and subject only to the conditions expressly stated thereinthereof, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the transactions contemplated hereby in the amount set forth therein (the “Financing”). The Debt Financing, may have been redacted to the extent, Commitment Letter is in each case, they are Permissible Redacted Terms. As full force and effect and is a valid and binding obligation of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, Parent and, to the extent related to any Person that is not an Affiliate Knowledge of the Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated herebyparties thereto, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge Knowledge of the Parent, such the other Persons party parties thereto in accordance with its terms, except as enforcement may be limited by terms (subject to applicable bankruptcy, insolvency, reorganization or similar Applicable Laws fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and by general principles of equity). As of the date hereof, the Financing Debt Commitment Letters are Letter has not been amended or modified, the respective commitments contained in full force the Debt Commitment Letter have not been withdrawn, rescinded or otherwise modified, and effect and assuming the satisfaction no such amendment, modification, withdrawal or waiver rescission of the conditions set forth Debt Commitment Letter is currently contemplated or the subject of current discussions (other than (x) amendments to add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto or (y) reductions in Section 7.01 and Section 7.02 on the Closing Datecommitments as contemplated by the Debt Commitment Letter in accordance with the terms thereof). As of the date hereof, Parent has no reason to believe that any 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 the Parent or Merger Sub any of its Affiliates or, to the knowledge Knowledge of the Parent, any other parties theretoPerson, under any of the Financing Debt Commitment LettersLetter. Assuming All fees (if any) required to be paid under the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 Debt Commitment Letter on the Closing Date, as of or prior to the date hereof, Parent does not hereof have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Datebeen paid in full. As of the date hereof, the Equity Commitment Letter contains all of the There are no conditions precedent and other conditions directly or indirectly related to the obligations funding of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter Letter. Other than the Debt Commitment Letter, there are no other contracts, arrangements or understandings entered into by the Parent or any Affiliate thereof related to the funding or investing, as applicable, of the Financing (except for (i) customary fee letters relating to the commitments in the Debt Commitment Letter, a true, complete and fully executed copy of each of which has been provided to the Company on Company, with only the fee amounts, “market flex,” pricing terms, pricing caps and other commercially sensitive terms redacted; provided that the Parent represents and warrants that the market flex provisions in such fee letter do not permit the imposition of any new conditions (or the modification or expansion of any existing conditions) or (ii) customary engagement letters or non-disclosure agreements which do not impact the conditionality or amount of the Financing). As of the date hereof, assuming the satisfaction of the conditions to the Parent’s obligation to complete the Arrangement, the Parent has no reason to believe that any of the conditions to the Financing will not be satisfied or that the full amount of the Financing will not be available to the Parent at the Effective Time. Assuming the Financing is funded at or immediately prior to the date hereof. Each Equity Effective Time in accordance with the Debt Commitment Letter providesand the Arrangement is completed in accordance with the terms of this Agreement following satisfaction of the conditions precedent thereto, the aggregate proceeds of the Financing (after giving effect to any market flex provisions), together with any cash on hand, available lines of credit and other sources of immediately available funds, will continue be in an amount sufficient to provide, enable the Parent to make the cash portion of the payment of the aggregate Consideration payable by the Purchaser pursuant to the Plan of Arrangement and any other amounts to be paid by the Parent or the Purchaser hereunder or under the Debt Commitment Letter. The Parent acknowledges and agrees that the Company is availability of funds (including the Financing) will not be a third party beneficiary thereof as set forth therein. condition to the obligation of the Parent and Merger Sub acknowledge and agree that their obligation or the Purchaser to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingtransactions contemplated hereby.
Appears in 2 contracts
Samples: Arrangement Agreement (Masonite International Corp), Arrangement Agreement (Owens Corning)
Financing. Parent The Purchaser has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) obtained a fully executed commitment letter (together with including all exhibits, schedulesannexes and other attachments thereto), and annexes thereto) and fee letter a copy of which has been delivered to the Company (the “Debt Commitment Letter”), from the financial institutions parties identified thereintherein (together with each other Person that has committed to provide or otherwise entered into agreements in connection with the Debt Commitment Letter or other financings in connection with the transactions contemplated by this Agreement, including (without limitation) any commitment letters, engagement letters, credit agreements, loan agreements or indentures relating thereto, together with each affiliate thereof and each officer, director, employee, partner, controlling person, advisor, attorney, agent and representative of each such Person or affiliate and their respective successors and assigns, the “Debt Financing Commitment Letter” andSources”, together who shall not include the Purchaser or its Affiliates, to provide the Purchaser with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts amount set forth therein; provided that fee amounts and pricing terms, including terms therein for the purpose of financing the transactions contemplated by this Agreement (being collectively referred to as (the “Debt Financing”). As of the “market flex” date of this Agreement, the Debt Commitment Letter has not been amended or modified, the respective commitments have not been withdrawn or rescinded in any way, and other commercially sensitive information, no such amendment or modification is contemplated (except as described in the fee letter entered into relating to the Debt Financing and to add additional lenders, lead arrangers, bookrunners, agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof). The Purchaser has fully paid any and all commitment fees or other fees due as of the date of this Agreement in connection with the Debt FinancingCommitment Letter and will pay in full any such amounts due on or before the Closing Date. The Debt Commitment Letter, may have been redacted in the form so delivered, is a valid and binding obligation of the Purchaser and, to the extentKnowledge of the Purchaser, the other parties thereto, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Except for the fee letter relating to the Debt Financing (a true and complete copy of which has been provided to the Company, redacted as to fee amounts, discount amounts, pricing caps and other economic terms only, but not redacted as to any such provisions that could adversely affect the amount (other than fees and discounts) or availability of the Debt Financing), as of the date of this Agreement, there are no other agreements, side letters, or arrangements relating to the Debt Financing that would reasonably be expected to affect the availability of the Debt Financing on the Closing Date, other than as expressly set forth in each case, they are Permissible Redacted Termsthe Debt Commitment Letter. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 failure of any condition to the funding of the Debt Financing on the part Closing Date or result in any portion of Parent or Merger Sub or, the Debt Financing being unavailable on the Closing Date (except to the knowledge of Parentextent offset by an increase in the Debt Financing or other funding being made available by the Debt Financing Source Related Parties or another financing source) and, any other parties thereto, under any of the Financing Commitment Letters. Assuming assuming the satisfaction of the conditions set forth in Section 7.01 3.01, the accuracy of the representations and Section 7.02 warranties set forth in Article IV and Article V, and the commencement and completion of the Marketing Period, the aggregate proceeds from the Debt Financing, together with immediately available cash on hand and other sources of cash available to the Purchaser, will provide the Purchaser with all of the financing required to consummate the transactions contemplated by this Agreement at the Closing Date, the Refinancing (as defined in the Debt Commitment Letter) and any other amounts required to be paid at the Closing Date in connection with the consummation of the date hereoftransactions contemplated under this Agreement and to pay all related fees and expenses, Parent does not have in each case for which the Purchaser is responsible. Except as expressly provided in the Debt Commitment Letter and the fee letter referenced therein, there are no conditions precedent, or other contractual contingencies as between Purchaser and any reason Debt Financing Source, in each case, that are related to believe that the funding of the full amount under of the Debt Financing contemplated by the Debt Commitment Letters will not be available to Parent or Merger Sub on the Closing DateLetter. As of the date hereofof this Agreement, there are no facts or circumstances that that would reasonably be expected to affect the Equity Commitment Letter contains all availability of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Debt Financing on the Closing DateDate or impose additional conditions to the funding of Debt Financing, other than as expressly set forth described in the Equity Debt Commitment Letter provided to (or in the Company on or prior to unredacted portion of the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth fee letter referenced therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. Parent has delivered to the Company a true, correct complete, accurate and complete copiesfully executed copy of a debt commitment letter, dated as of the date hereof, among the Debt Financing Sources party thereto and Merger Sub and the related fee letter, redacted in a customary manner solely with respect to the fees, pricing caps, and certain economic terms (including customary market flex terms), which redacted information does not adversely affect the amount, availability, or conditionality of (i) the funding of the Debt Financing, in each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with case, including all exhibits, schedules, annexes and annexes thereto) amendments to such letters in effect as of the date hereof, pursuant to which and fee letter from subject to the financial institutions identified terms and conditions thereof, the Debt Financing Sources have committed to lend the amounts set forth therein to Merger Sub (the provision of such funds as set forth therein, the “Debt Financing Commitment Letter” and, together with Financing”) for the Equity Commitment Letterspurposes set forth therein (such debt commitment letter, the “Financing Debt Commitment LettersLetter”) to provide). The Debt Commitment Letter has not been amended, on the terms and subject only restated or otherwise modified or waived prior to the conditions expressly stated thereinexecution and delivery of this Agreement, debt financing and the commitments contained in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may Commitment Letter have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to otherwise modified in any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or respect prior to the Closing Date in connection with the consummation execution and delivery of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, no such withdrawal, rescission, amendment, restatement, modification or waiver is contemplated (other Persons party thereto than any such amendment, modification, or restatement to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof). As of the date of this Agreement, the Debt Commitment Letter is in accordance with its termsfull force and effect and constitutes the legal, except as enforcement may be limited by valid and binding obligation of Merger Sub and, to the knowledge of Parent, each of the other parties thereto, subject, in each case, to applicable bankruptcy, insolvency, reorganization or similar Applicable Laws fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and by general principles of equity. There are no conditions precedent or contingencies directly or indirectly related to the funding of the Debt Financing pursuant to the Debt Commitment Letter except as expressly set forth therein. At the Closing, after taking into account the Debt Financing, cash on hand, available lines of credit and other sources of immediately available funds available to Parent, Parent and Merger Sub will have funds in an amount sufficient to pay all of Parent’s and Merger Sub’s obligations under this Agreement, including the payment of the aggregate Offer Price and Merger Consideration, the payment of any amounts outstanding under the Company’s Existing Credit Agreement, all cash amounts to be paid with respect to the outstanding Company Equity Awards pursuant to Section 3.08 and all fees and expenses expected to be incurred in connection therewith (such amount, the “Required Amount”). As of the date hereofof this Agreement, to the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver knowledge of the conditions set forth in Section 7.01 and Section 7.02 on the Closing DateParent, Parent has no reason to believe that any event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected to (A) constitute a material breach or default or breach on of any provision of the part of Debt Commitment Letter by Parent or Merger Sub or, any other party thereto or otherwise cause any portion of the Debt Financing to be unavailable or (B) otherwise result in the Debt Financing not being available on a timely basis at or prior to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on time that the Closing Date, as is required to occur pursuant to the terms of this Agreement in order to consummate the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Datetransactions contemplated by this Agreement. As of the date hereof, no Debt Financing Source has notified Parent or Merger Sub of its intention to terminate the Equity Debt Commitment Letter contains all of or not provide the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinDebt Financing. As of the date hereof, of this Agreement there are no side letters or other agreements, Contracts, arrangements or understandings (written or oral) directly or indirectly related to which Parent or any Equity Investor is a party that would adversely affect the availability funding of the Equity Debt Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter provided Letter. Parent and Merger Sub have paid in full any and all commitment fees and other fees required to the Company be paid on or prior to the date hereofhereof under the terms of the Debt Commitment Letter. Each Equity Commitment Letter providesAs of the date of this Agreement, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. each of Parent Table of Contents and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration (A) is not conditioned aware of any fact, event or other occurrence that makes any of the representations or warranties of Parent or Merger Sub in the Debt Commitment Letter inaccurate in any material respect and (B) has no reason to believe that any of the conditions precedent to the funding of the Debt Financing will not be satisfied on a timely basis or that the Debt Financing will not be made available on the availability of Debt FinancingClosing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Sonic Financial Corp), Agreement and Plan of Merger (Speedway Motorsports Inc)
Financing. Parent has delivered received, and previously provided to the Company trueSpecial Committee, correct fully executed commitment letters from Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Bank of America, N.A. and complete copiesThe Bank of Nova Scotia (the “Lenders”) dated the date hereof providing for financing in an aggregate amount equal to $1,150,000,000 (the “Debt Financing”) and describing the terms and conditions upon which such Lenders (together with their officers, employees, directors, affiliates, partners, controlling parties, advisors, agents and representatives, the “Financing Sources”) will arrange and provide such financing (the “Debt Commitment Letter”) (it being understood and agreed that each related fee letter shall have been redacted in a customary manner as required by the terms of the date hereofDebt Commitment Letter, which shall include, without limitation, the fee amounts and certain economic terms of the market “flex” (i) each none of which redacted terms would adversely affect the amount or availability of the Debt Financing). Parent has received, and previously provided to the Special Committee, a fully executed Equity Commitment Letter commitment letter from Xxxxxxx dated the date hereof providing for financing in an aggregate amount equal to $200,000,000 (the financing provided for therein being collectively referred to as the “Equity Financing”) and describing the terms and conditions upon which Xxxxxxx will provide such financing (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Equity Commitment Letter” and, together with the Equity Debt Commitment LettersLetter, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing The Commitment Letters are in full force and effect on the date hereof and assuming have not been withdrawn, rescinded, amended or modified in any respect. There are no conditions precedent to the satisfaction or waiver funding of the conditions full amount of the financing contemplated by the Commitment Letters other than as expressly set forth in Section 7.01 the Commitment Letters. There are no facts and Section 7.02 circumstances known to Xxxxxxx, Parent, Purchaser or any of their respective affiliates that are or that any of them believe is likely to (i) prevent the conditions described in the Commitment Letters from being satisfied on a timely basis, (ii) constitute a default or breach on the Closing Datepart of Xxxxxxx, Parent has no reason to believe that Parent, Purchaser or any event has occurred which, of their respective affiliates under the Commitment Letters (whether 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 (iii) prevent Parent or Merger Sub or, Purchaser from receiving financing pursuant to the knowledge terms of Parent, any other parties thereto, under the Commitment Letters or (iv) make any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly assumptions set forth in the Equity Commitment Letter provided Letters unreasonable. There are no facts and circumstances known to Xxxxxxx, Parent, the Purchaser or any of their respective affiliates that are or that any of them believe is likely to cause the financings contemplated by the Commitment Letters not to be consummated substantially in accordance with the terms thereof. The aggregate proceeds of the financings contemplated by the Commitment Letters, when taken together with the unrestricted cash of the Company and its Subsidiaries, are sufficient to pay the aggregate Merger Consideration, to pay cash amounts payable to the holders of the Company on Options pursuant to Section 3.3(a), to effect all refinancings of existing indebtedness of the Company and its Subsidiaries required as a result of the Merger or prior as required by the Commitment Letters and to pay the anticipated fees and expenses related to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that Merger (the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing“Required Cash Amount”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dole Food Co Inc), Agreement and Plan of Merger (Murdock David H)
Financing. Parent has delivered to the Company true, complete and correct copies of an executed commitment letter, together with the related fee letter (subject to redaction solely of fee amounts, original issue discount amounts, pricing caps and complete copiesother economic provisions that are customarily redacted in connection with merger agreements of this type, provided, that such redactions do not relate to any terms that would adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing (other than through the operation of original issue discount)), each in effect as of the date hereofof this Agreement (together, as they may be amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in accordance with Section 6.13, the “Debt Commitment Letter”) from the lenders (i) each fully executed Equity Commitment Letter including any lenders, lead arrangers, bookrunners, syndication agents or similar entities who become party thereto by joinder or otherwise, the “Lenders”), to provide debt financing in an aggregate amount set forth therein and subject to the terms and conditions set forth therein (the financing provided for therein being collectively referred to as the “Equity Debt Financing”) and (ii) a fully executed ). The Debt Commitment Letter has not been amended or modified in any manner as of the date hereof. The commitment letter (together with all exhibitscontained in the Debt Commitment Letter has not been terminated, schedulesreduced, withdrawn or rescinded in any respect, and annexes thereto) and fee letter from as of the financial institutions identified thereindate hereof, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated thereinKnowledge of Parent, debt financing no such termination, reduction, withdrawal or rescission is contemplated. Parent has paid in the full any and all commitment fees or other fees and amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted Commitment Letter that are payable on or prior to the extent, in each case, they are Permissible Redacted Termsdate of this Agreement. As of the date hereofof this Agreement, none the Debt Commitment Letter is (a) in full force and effect and (b) the valid, binding and enforceable obligation of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, Parent and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, whether considered in a proceeding in equity or at law. There are no conditions precedent or other contingencies related to the knowledge funding of Parentthe full amount (or any portion) of the Debt Financing, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to other than as expressly set forth in the extent any such amendment is not prohibited under this AgreementDebt Commitment Letter. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicablethe accuracy of the representations and warranties set forth in Article IV to the extent necessary to satisfy the condition in Section 7.2(a) and performance by the Company of its obligations under this Agreement to the extent necessary to satisfy the condition in Section 7.2(b), the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, together with cash on hand that will be available on the Parent Balance Sheet as of the Closing Date, will, in the aggregate, be sufficient for Parent, Merger Sub Parent and the Surviving Corporation Company to pay all of the cash amounts required to be paid in connection with provided by Parent for the Merger and the other transactions contemplated hereby, including payment consummation of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries transactions contemplated by this Agreement, to pay any other including the amounts payable in connection with the consummation of the Merger, all related fees and expenses required to be paid as of the date of the consummation of the Merger and the funds to be provided by (or on behalf of) Parent to the Company to enable the Company to fund the repayment or refinancing of the Notes and the Company Credit Agreement and all amounts payable pursuant to Sections 6.14(b), 6.14(c) and 6.14(d). As of the date of this Agreement, there are no side letters, understandings or other agreements, contracts or arrangements of any kind relating to the Debt Commitment Letter that could affect the availability of the Debt Financing contemplated by the Debt Commitment Letter. As of the date of 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 or failure to satisfy a condition precedent by Parent or Merger Sub under the terms and conditions of the Debt Commitment Letter and (ii) assuming satisfaction of the conditions set forth in Section 7.1 and Section 7.2 and completion of the Marketing Period, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied by Parent on a timely basis on or prior to the Closing Date in or that the Debt Financing will not be available to Parent on the date of the Closing. In connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”)Agreement, assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parentno consents, Merger Sub (waivers or modifications to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 indebtedness of Parent or Merger Sub or, its Subsidiaries is necessary to incur the knowledge of Parent, any other parties thereto, under any of Debt Financing contemplated by the Financing Debt Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (NXP Semiconductors N.V.), Agreement and Plan of Merger (Freescale Semiconductor, Ltd.)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Buyer Parties anticipate that the financing of the transaction contemplated hereby will consist of debt financing (the “Debt Financing”) provided to the Buyer Parties pursuant to the commitment letter among Deutsche Bank Trust Company Americas, Deutsche Bank Securities Inc. and the Buyer Parties dated as of the date hereof (the “Debt Commitment Letter”) and attached hereto as Exhibit 4.09. Buyer has delivered to Seller a true and complete copy of the fully executed Debt Commitment Letter pursuant to which the parties thereto have committed to provide the Debt Financing (the “Debt Financing Commitment”). As of the date of this Agreement, the Debt Commitment Letters are Letter is in full force and effect and assuming the satisfaction or waiver is a legal, valid and binding obligation of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub orBuyer Parties and, to Parent’s or Buyer’s Knowledge, the knowledge of Parent, any other parties thereto, under any of and the Debt Financing Commitment Lettersthereunder has not been withdrawn or terminated. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date6.01, (a) each Buyer Party has no reason to believe, as of the date hereofof this Agreement, Parent does that it will not have be able to satisfy on a timely basis any term or condition of closing to be satisfied by it or its Affiliates set forth in the Debt Commitment Letter and (b) such Buyer Party has no reason to believe believe, as of the date of this Agreement, that any portion of the full amount under the Debt Financing Commitment Letters to be made available thereunder will otherwise not be available to Parent or Merger Sub the Buyer Parties on a timely basis to consummate the Closing Datetransactions contemplated hereby. As The execution of this Agreement and the consummation of the date hereoftransactions contemplated hereby will not conflict with or result in a breach, violation or default or give rise to any right of termination, cancellation or modification under the Debt Commitment Letter, the Equity Commitment Letter contains all Indenture, dated as of May 2, 2006, among Parent, Wxxxx Fargo Bank, National Association, and the other parties thereto, as amended from time to time (the “Indenture”) or any other credit facility or financing arrangement of the conditions precedent and Buyer Parties (other conditions than, with respect to the obligations incurrence of the parties thereunder additional debt financing contemplated by the Debt Commitment Letter, the Credit Agreement, dated as of May 2, 2006, among Parent (as successor by merger to make Lone Star Merger Corp., Activant Group Inc. (formerly known as Lone Star Holdings Corp.), Deutsche Bank Trust Company Americas, as Administrative Agent, the full amount of other lenders thereto, JPMorgan Chase Bank, N.A. as Syndication Agent, and Lxxxxx Commercial Paper Inc., as Documentation Agent, as amended from time to time (the Equity Financing available to Parent on the terms therein“Credit Agreement”). As of the date hereof, there are no side letters The Buyer Parties have fully paid any and all commitment fees or other agreements, arrangements or understandings fees required by the Debt Financing Commitment to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company be paid by it on or prior to the date hereofof this Agreement. Each Equity Commitment Letter provides, and will continue to provide, that Assuming the Company is a third party beneficiary thereof as satisfaction of the conditions set forth thereinin Section 6.01 and in the Debt Commitment Letter, the Debt Financing, when funded in accordance with the Debt Financing Commitment, will provide the Buyer Parties with funds sufficient to satisfy all of their obligations under this Agreement. Parent and Merger Sub acknowledge and agree that their The obligations to make the Debt Financing available to the Buyer Parties pursuant to the terms of the Debt Financing Commitment are not subject to any conditions other than the conditions set forth in the Debt Commitment Letter. Nothing in this Section 4.09 or in Section 5.20 shall be construed to limit the obligation of the Buyer Parties to consummate the Merger transactions contemplated by this Agreement, the Parties agreeing and pay acknowledging that the Aggregate Merger Consideration Closing is expressly not conditioned on upon either (x) the availability Buyer Parties obtaining, or ability to obtain, the Debt Financing or any Alternative Financing or (y) the effectiveness of any amendment to the Credit Agreement necessary to permit the incurrence of the Debt Financing or any Alternative Financing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Activant Solutions Inc /De/)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none Buyer has received an executed debt commitment letter dated the date hereof and attached as Exhibit E (the “Debt Commitment Letter”) from Xxxxx Fargo Bank, National Association (the “Financing Sources”), pursuant to which the Financing Sources have committed, subject to the terms and conditions set forth therein, to provide to Buyer the amount of financing set forth in the Debt Commitment Letter (the “Debt Financing”), for the Financing Purposes (as defined below). A true and complete copy of the Financing fully executed Debt Commitment Letters Letter as in effect on the date hereof has been withdrawnprovided to the Company. A true and complete copy of each fee letter and engagement letter related to the Debt Commitment Letter as in effect on the date hereof has been provided to the Company, terminatedexcept that the pricing, repudiatedfees, rescinded, amended, amended flex provisions (other than with respect to commitment amounts or funds available at Closing) and restated or modified, no terms thereunder other commercially sensitive numbers specified therein may have been waived, redacted. Buyer has fully paid any and no all commitment fees or other fees required by such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Debt Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required Letter to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to before the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equitydate hereof. As of the date hereof, the Financing Debt Commitment Letters are Letter is a legal, valid and binding obligation of Buyer and, to the knowledge of Buyer, each other party thereto, and in full force and effect effect, has not been amended, modified, withdrawn, terminated or rescinded in any respect, and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 does not contain any material misrepresentation by Buyer and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, which (with or without notice, lapse of time or both, would or ) would reasonably be expected to constitute a default or breach thereunder on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing DateBuyer. As of the date hereof, no amendment or modification to, or withdrawal, termination or rescission of, the Equity Debt Commitment Letter contains is contemplated. The aggregate proceeds contemplated by the Debt Commitment Letter together with Buyer’s cash on hand will be sufficient for Buyer and, after the Closing, the Company to complete the transactions contemplated by this Agreement, and to satisfy all of the conditions precedent obligations of Buyer under this Agreement, including paying the Initial Merger Consideration at Closing and other conditions paying all related fees and expenses (collectively, the “Financing Purposes”). Except for the fee letter referred to in the Debt Commitment Letter (a copy of which has been delivered to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As Company in accordance with this Section 5.5), as of the date hereof, there are no side letters or other agreements, contracts, arrangements or understandings related to which Parent the funding or any Equity Investor is a party that would adversely affect the availability investing, as applicable of the Equity Debt Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter provided to the Company on or prior to Letter. As of the date hereof. Each Equity , there are no conditions precedent or other contingencies (x) related to the funding of the full amount of the Debt Financing or any provisions that could reduce the aggregate amount of the Debt Financing set forth in the Debt Commitment Letter providesor the aggregate proceeds contemplated by the Debt Commitment Letter or (y) that could otherwise adversely affect the conditionality, and enforceability or availability of the Debt Commitment Letter with respect to all or any portion of the Debt Financing, in each case other than as expressly set forth in the Debt Commitment Letter. As of the date hereof, Buyer does not have any reason to believe that any of the conditions to the Debt Financing will continue to provide, not be satisfied on a timely basis or that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation Debt Financing will not be available to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned Buyer on the availability of Debt Financingdate on which the Closing should occur pursuant to Section 2.1.
Appears in 1 contract
Financing. Parent has delivered to the Company true, correct true and complete copiescopies of the fully executed debt commitment letters from Credit Suisse AG, Jefferies Finance LLC and UBS AG, Stamford Branch (collectively, the “Lenders”), dated as of the date hereof, of this Agreement (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with including all exhibits, schedules, annexes and annexes thereto) and fee letter from amendments thereto as of the financial institutions identified thereindate of this Agreement, collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the or “Financing Commitment LettersCommitments”) ), pursuant to providewhich, on and subject to the terms and subject only conditions thereof, the Lenders have committed to the conditions expressly stated therein, debt financing in lend or make available the amounts set forth thereintherein to Buyer, for the purpose of funding the Transactions and related fees and expenses and the refinancing of the Existing Credit Facility (the “Debt Financing”); provided provided, however, that in the case of the Fee Letter, true and complete copies have been delivered to the Company with the fee amounts and pricing termsmarket flex terms (if any) redacted in a customary matter (so long as the redaction does not cover terms that would adversely affect the conditionality, including terms availability or termination of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofof this Agreement, none all of the Financing Commitments are in full force and effect and are legal, valid and binding obligations of Parent, Buyer and, to the knowledge of Parent, the other parties thereto, enforceable in accordance with their respective terms subject to the Enforceability Exceptions. As of the date of this Agreement, no Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated supplemented or modified, no terms thereunder have been waivedin any respect, and no such withdrawal, termination, repudiation, rescission, amendment, amendment supplement or modification is contemplated. Assuming the accuracy of the Company’s representations and restatementwarranties set forth in Article 3, modification or waiver has occurredas of the date of this Agreement, and, to the extent related to any Person that is not an Affiliate of Parentneither Parent nor, to the knowledge of Parent, there any other counterparty thereto has committed any breach of any of its covenants or other obligations set forth in, or is no condition existing that would require in default under, any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to of the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment LettersCommitments, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute or result in a breach or default or breach on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, Person under any of the Financing Commitment LettersCommitments, (ii) constitute or result in a failure to satisfy any of the terms or conditions set forth in any of the Financing Commitments, (iii) make any of the assumptions or any of the statements set forth in the Financing Commitments inaccurate in any material respect or (iv) otherwise result in any portion of the Debt Financing not being available. Assuming The aggregate proceeds from the Debt Financing constitute all of the financing required for the consummation of the Transactions and, assuming the satisfaction of the conditions set forth in Section 7.01 Annex I, when taken together with unrestricted cash on hand of Parent and Section 7.02 its Subsidiaries and the Company and its Subsidiaries, are sufficient in amount to provide Parent with the funds necessary for it and Buyer to consummate the Transactions at the Closing, to pay all of Parent’s and Buyer’s fees and expenses in connection with this Agreement and the Offer due and payable on or prior to the Closing Date, as and to satisfy their obligations under this Agreement at the Closing. There are no conditions precedent to the funding of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of Debt Financing other than the conditions precedent and set forth in the Debt Commitment Letters and, other conditions than the Debt Commitment Letters, there are no side letters, other agreements or contingencies relating to the obligations of the parties thereunder counterparties to make the full Debt Commitment Letters to provide the Debt Financing or that would permit the counterparties thereto to reduce the total amount of the Equity Debt Financing available to Parent on under the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingLetters.
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Financing. Parent has delivered to the Company true, correct true and complete copiescopies of a fully executed commitment letter and fee letter (other than any customary information to be redacted from the fee letter with respect to fees and market “flex” provisions pursuant to the terms thereof, as which redacted information shall not include any information that would adversely affect the aggregate amount, conditionality, or termination of the financing contemplated therein) dated on or about the date hereofof this Agreement from the financial institutions identified therein (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.10, collectively, the “Debt Commitment Letter”), providing, subject to the terms and conditions therein, for debt financing in the amounts set forth therein (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Debt Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofof this Agreement, none of the Financing Debt Commitment Letters Letter has not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there no such amendment or modification is no condition existing that would require contemplated, and to the knowledge of Parent, none of the respective obligations and commitments contained in such letters have been withdrawn, terminated or rescinded in any respect nor is any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification termination or waiver, except to the extent any such amendment is not prohibited under this Agreementrescission contemplated. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and (a) the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableLetter and (b) the satisfaction of the Offer Conditions, the net proceeds contemplated by the Equity Debt Commitment LettersLetter (after netting out applicable Expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) will, together with Parent’s cash and the net proceeds contemplated by the Debt Financing Commitment LetterMinimum Cash Balance, will in the aggregate, aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration (and any repayment or refinancing of debt contemplated by this Agreement or the Debt Commitment Letter) and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment consummation of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing Transactions (including all amounts payable in respect of debt of the Company and its Subsidiaries contemplated by Equity Awards under this Agreement, ) and to pay any other amounts required to be paid by Parent or Merger Sub all related Expenses payable on or prior to the Closing Date by them in connection with the consummation of the transactions contemplated by this Agreement Transactions (such amount collectively, the “Required Amount”), assuming the satisfaction . As of the conditions set forth in Section 7.02(a) and Section 7.02(b) on date of this Agreement, the Closing Date. Each Financing Debt Commitment Letter is enforceable against Parent(i) a legal, Merger Sub (to the extent Parent or Merger Sub is a party thereto) valid and binding obligation of Guarantor and, to the knowledge of Parent, such each of the other Persons party thereto parties thereto, (ii) enforceable in accordance with its termstheir respective terms against Guarantor, except as enforcement may be limited by bankruptcyand, insolvencyto the knowledge of Parent, reorganization or similar Applicable Laws affecting creditors’ rights generally each of the other parties thereto and by general principles of equity(iii) in full force and effect, in each case subject to the Enforceability Exceptions. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub Guarantor or, to the knowledge of Parent, any other parties thereto, thereto under any the Debt Commitment Letter. All commitment fees and other fees required to be paid on or before the date of the Financing Commitment Lettersthis Agreement have been paid. Assuming the satisfaction or waiver of the conditions set forth in Section 7.01 to Parent’s and Section 7.02 on Merger Sub’s obligations to consummate the Closing Date, as of Offer and the date hereofMerger, Parent does not have any reason to believe that the full amount under conditions precedent set forth in the Financing Debt Commitment Letters Letter will not be satisfied or that the Required Amount will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the The only conditions precedent and other conditions related to the obligations of the parties thereunder lenders to make fund the full amount of the Equity Debt Financing available to Parent on are those expressly set forth in the terms thereinDebt Commitment Letter. As of the date hereof, there There are no side letters or other agreementsContracts or arrangements (except for a customary fee letter, arrangements fee credit letter and engagement letter that do not affect the conditionality or understandings amount of the Debt Financing) to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability of the Equity Debt Financing on the Closing Date, other than as expressly set forth contained in the Equity Debt Commitment Letter provided delivered to the Company on or prior to the date hereof. Each Equity of this Agreement that would (A) impair the enforceability of the Debt Commitment Letter, (B) reduce the aggregate amount of any portion of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter provides, and will continue to provide, on the date of this Agreement) such that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation aggregate amount of the Debt Financing would be below the amount required to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on Required Amount, (C) impose new or additional conditions precedent to the availability Debt Financing, (D) otherwise adversely modify any of the conditions precedent to the Debt Financing or (E) reasonably be expected to prevent, impair or delay the consummation of the Debt Financing.
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Financing. Parent Lessee acknowledges that Lessor has delivered to advised Lessee that Lessor has obtained financing secured by, among other things, the Company trueSystem and this Agreement. In connection with such financing, correct Lessor made certain representations, warranties and complete copies, as of the date hereof, of covenants set forth in that certain (i) each fully executed Equity Commitment Letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of September 14, 2010 (the financing provided for therein being collectively referred as amended, restated, supplemented or otherwise SYSTEM LEASE AGREEMENT 16 modified from time to as time, the “Equity Financing2009 Note Purchase Agreement”) ), a copy of which has been provided to and reviewed by Lessee, (ii) a fully executed commitment letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of July 13, 2010 (together with all exhibitsas amended, schedulesrestated, and annexes thereto) and fee letter supplemented or otherwise modified from the financial institutions identified thereintime to time, the “Debt Financing Commitment Letter2010 Note Purchase Agreement” and, together with the Equity Commitment Letters2009 Note Purchase Agreement, the “Financing Commitment LettersNote Purchase Agreements”), a copy of which has been provided to and reviewed by Lessee and (iii) to provide, on the terms Second Amended and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter Restated Credit Agreement entered into in connection with the Debt Financingby Lessor and dated as of June 28, may have been redacted to the extent2013 (as amended, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amendedrestated, amended and restated restated, supplemented or modifiedotherwise modified from time to time, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, the “Credit Agreement” and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance together with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableNote Purchase Agreements, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the “Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountAgreements”), assuming a copy of which has been provided to and reviewed by Lessee. Lessee hereby covenants and agrees with Lessor that, during the satisfaction term of the conditions 2009 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.02(aSections 9.08 (Material Project Documents) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub that Lessee is a party theretoto any Material Project Documents, as defined in the 2009 Note Purchase Agreement), 10.04 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As 10.17 (Regulation) of the date hereof2009 Note Purchase Agreement. Lessee hereby covenants and agrees with Lessor that, during the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver term of the conditions 2010 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, Sections 9.8 (Material Project Documents) (to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe extent that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor Lessee is a party that would adversely affect to any Material Project Documents, as defined in the availability 2010 Note Purchase Agreement), 10.4 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and 10.17 (Regulation) of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing2010 Note Purchase Agreement.
Appears in 1 contract
Financing. Section 5.2(e)(i) of the Parent has delivered to the Company true, correct Disclosure Letter sets forth a true and complete copiescopy of the commitment letter, dated as of the date hereofof this Agreement, of among Citigroup Global Markets Inc., Gxxxxxx Sxxxx Credit Partners L.P., JPMorgan Chase Bank, N.A., J.X. Xxxxxx Securities Inc., Lxxxxx Brothers Inc., Lxxxxx Brothers Commercial Bank, Lxxxxx Commercial Paper Inc. and Mxxxxx Sxxxxxx Senior Funding, Inc. (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” andCommitment”), together with the Equity Commitment Letterspursuant to which lenders party thereto have committed, the “Financing Commitment Letters”) subject to provide, on the terms and subject only to the conditions expressly stated set forth therein, debt financing in to lend the amounts set forth therein; provided that fee amounts and pricing terms, including terms therein for the purposes of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of financing the transactions contemplated by this Agreement and related fees and expenses (the “Required AmountDebt Financing”). Section 5.2(e)(ii) of the Parent Disclosure Letter sets forth true and complete copies of the equity commitment letters, dated as of the date of this Agreement, from (i) KKR 2006 Fund L.P., (ii) TPG Partners V, L.P., (iii) J.X. Xxxxxx Ventures Corporation, (iv) Citigroup Global Markets Inc. and (v) Mxxxxx Sxxxxxx & Co. Incorporated (collectively, the “Equity Financing Commitments” and together with the Debt Financing Commitment, the “Financing Commitments”), assuming pursuant to which the satisfaction of investor parties thereto have committed, subject to the terms and conditions set forth therein, to invest the amounts set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Prior to the date hereof, (i) none of the Financing Commitments has been amended or modified, (ii) no such amendment or modification is contemplated, and (iii) the respective commitments contained in Section 7.02(a) and Section 7.02(b) on the Closing DateFinancing Commitments have not been withdrawn or rescinded in any respect. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the extent Parent or execution hereof. The Financing Commitments are in full force and effect as of the date hereof and are the legal, valid and binding obligations of Merger Sub is a party thereto) and, to the knowledge of Parent, such of the other Persons party thereto parties thereto. Notwithstanding anything in this Agreement to the contrary, one or more Debt Financing Commitment may, in accordance with its termsthe provisions of this Agreement, except be superseded at the option of Parent after the date of this Agreement but prior to the Effective Time by instruments (the “New Debt Financing Commitments”) replacing existing Debt Financing Commitment, provided that the terms of the New Debt Financing Commitments shall not (a) expand upon the conditions precedent to the Financing as enforcement may set forth in the Debt Financing Commitment or (b) otherwise delay the Closing. In such event, the term “Financing Commitments” as used herein shall be limited deemed to include the Financing Commitments that are not so superseded at the time in question and the New Debt Financing Commitments to the extent then in effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equitythe Financing Commitments. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing DateCommitments. As of the date hereof, the Equity Commitment Letter contains all Parent has no reason to believe that any of the conditions precedent and other conditions to the obligations of Financing contemplated by the parties thereunder to make Financing Commitments will not be satisfied or that the full amount of the Equity Financing will not be made available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date. Assuming the Financing Commitments are funded, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge will have at and agree that their obligation after the Closing funds sufficient to consummate the Merger and pay the Aggregate aggregate Per Share Merger Consideration is not conditioned on (and any repayment or refinancing of debt contemplated by this Agreement or the availability Financing Commitments) and any other amounts required to be paid in connection with the consummation of Debt Financingthe transactions contemplated hereby, and to pay all related fees and expenses.
Appears in 1 contract
Financing. Parent Prior to the Signing Date, Buyer has delivered to the Company true, correct Seller true and complete copiescopies of (a) the executed commitment letter, dated as of the date hereofJune 28, 2019, between Buyer and LBC Credit Partners, Inc., RGA Reinsurance Company, and Bank of (i) each fully executed Equity Commitment Letter Montreal (the financing provided “Debt Financing Commitments”), and each fee letter, which may be redacted as to fee amounts, pursuant to which LBC Credit Partners, Inc., RGA Reinsurance Company, and Bank of Montreal have agreed to lend the amounts set forth therein (the “Debt Financing”) for therein being collectively referred to the purpose of funding the transactions contemplated by this Agreement, and (b) the equity commitment letter, dated as of June 28, 2019, between Buyer and Sponsor (the “Equity Financing”) Financing Commitments,” and (ii) a fully executed commitment letter (together with the Debt Financing Commitments and all exhibits, schedules, annexes, supplements and annexes amendments thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment LettersCommitments”) ), pursuant to provide, on which Sponsor has committed to invest the terms and subject only to the conditions expressly stated therein, debt financing in the amounts amount set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flexEquity Financing” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereofSigning Date, none of the Financing Commitment Letters Commitments has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated restated, supplemented, or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will respective commitments contained in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid Financing Commitments have not been withdrawn or rescinded in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityrespect. As of the date hereofSigning Date, the Financing Commitment Letters Commitments are in full force and effect and assuming constitute the satisfaction or waiver legal, valid and binding obligations of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub orBuyer and, to the knowledge of ParentBuyer’s knowledge, any the other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the There are no conditions precedent and or other conditions contingencies related to the obligations funding of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing DateFinancing, other than as expressly set forth in the Equity Commitment Letter provided Financing Commitments. Assuming the Financing Commitments are funded, that the aggregate proceeds to be disbursed pursuant to the Company agreements contemplated by the Financing Commitments will be sufficient for Buyer to pay all purchase price obligations required to be paid pursuant to Article II. As of the Signing Date, to the Buyer’s knowledge, 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) under the Financing Commitments, and Buyer does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Buyer on the Closing Date. Buyer has fully paid any commitment fees or other fees required to be paid prior to the date hereof. Each Equity Commitment Letter provides, and will continue Signing Date pursuant to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing Commitments.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pioneer Power Solutions, Inc.)
Financing. Parent has delivered to the Company true, correct true and complete copiescopies of a fully executed commitment letter and fee letter (other than any customary information to be redacted from the fee letter with respect to fees and market “flex” provisions pursuant to the terms thereof, as which redacted information shall not include any information that would adversely affect the aggregate amount, conditionality, or termination of the financing contemplated therein) dated on or about the date hereofof this Agreement from the financial institutions identified therein (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.10, collectively, the “Debt Commitment Letter”), providing, subject to the terms and conditions therein, for debt financing in the amounts set forth therein (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Debt Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofof this Agreement, none of the Financing Debt Commitment Letters Letter has not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there no such amendment or modification is no condition existing that would require contemplated, and to the knowledge of Parent, none of the respective obligations and commitments contained in such letters have been withdrawn, terminated or rescinded in any respect nor is any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification termination or waiver, except to the extent any such amendment is not prohibited under this Agreementrescission contemplated. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and (a) the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableLetter and (b) the satisfaction of the Offer Conditions, the net proceeds contemplated by the Equity Debt Commitment LettersLetter (after netting out applicable Expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) will, together with Parent’s cash and the net proceeds contemplated by the Debt Financing Commitment LetterMinimum Cash Balance, will in the aggregate, aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration (and any repayment or refinancing of debt contemplated by this Agreement or the Debt Commitment Letter) and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment consummation of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing Transactions (including all amounts payable in respect of debt of the Company and its Subsidiaries contemplated by Equity Awards under this Agreement, ) and to pay any other amounts required to be paid by Parent or Merger Sub all related Expenses payable on or prior to the Closing Date by them in connection with the consummation of the transactions contemplated by this Agreement Transactions (such amount collectively, the “Required Table of Contents Amount”), assuming the satisfaction . As of the conditions set forth in Section 7.02(a) and Section 7.02(b) on date of this Agreement, the Closing Date. Each Financing Debt Commitment Letter is enforceable against Parent(i) a legal, Merger Sub (to the extent Parent or Merger Sub is a party thereto) valid and binding obligation of Guarantor and, to the knowledge of Parent, such each of the other Persons party thereto parties thereto, (ii) enforceable in accordance with its termstheir respective terms against Guarantor, except as enforcement may be limited by bankruptcyand, insolvencyto the knowledge of Parent, reorganization or similar Applicable Laws affecting creditors’ rights generally each of the other parties thereto and by general principles of equity(iii) in full force and effect, in each case subject to the Enforceability Exceptions. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub Guarantor or, to the knowledge of Parent, any other parties thereto, thereto under any the Debt Commitment Letter. All commitment fees and other fees required to be paid on or before the date of the Financing Commitment Lettersthis Agreement have been paid. Assuming the satisfaction or waiver of the conditions set forth in Section 7.01 to Parent’s and Section 7.02 on Merger Sub’s obligations to consummate the Closing Date, as of Offer and the date hereofMerger, Parent does not have any reason to believe that the full amount under conditions precedent set forth in the Financing Debt Commitment Letters Letter will not be satisfied or that the Required Amount will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the The only conditions precedent and other conditions related to the obligations of the parties thereunder lenders to make fund the full amount of the Equity Debt Financing available to Parent on are those expressly set forth in the terms thereinDebt Commitment Letter. As of the date hereof, there There are no side letters or other agreementsContracts or arrangements (except for a customary fee letter, arrangements fee credit letter and engagement letter that do not affect the conditionality or understandings amount of the Debt Financing) to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability of the Equity Debt Financing on the Closing Date, other than as expressly set forth contained in the Equity Debt Commitment Letter provided delivered to the Company on or prior to the date hereof. Each Equity of this Agreement that would (A) impair the enforceability of the Debt Commitment Letter, (B) reduce the aggregate amount of any portion of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter provides, and will continue to provide, on the date of this Agreement) such that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation aggregate amount of the Debt Financing would be below the amount required to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on Required Amount, (C) impose new or additional conditions precedent to the availability Debt Financing, (D) otherwise adversely modify any of the conditions precedent to the Debt Financing or (E) reasonably be expected to prevent, impair or delay the consummation of the Debt Financing.
Appears in 1 contract
Financing. As of the date hereof, Parent has delivered to the Company true, correct a true and complete copies, as copy of the date hereof, of executed (ia) each fully executed Equity Commitment Letter (in respect of the financing provided for therein being collectively referred to as the “Equity Financing”) Commitment and (iib) a fully executed debt commitment letter (together with including all exhibits, schedules, exhibits and annexes schedules thereto) and fee letter Redacted Fee Letter (as each of the foregoing may be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the financial institutions identified thereindate hereof in compliance with Section 7.05, collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment LettersLetter, the “Financing Commitment Letters”) ), among Parent and the Debt Financing Sources party thereto, pursuant to which Debt Financing Sources have agreed and committed to provide, on the terms and subject only to the terms and conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (being collectively referred to as the “market flexDebt Financing” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Equity Financing, may have been redacted to the extent“Financing”), in each case, they are Permissible Redacted Termsfor purposes of financing the transactions contemplated by this Agreement, the related fees and expenses to be incurred by Parent in connection therewith and for the other purposes set forth in such Commitment Letters. As of the date hereofof this Agreement, (x) the Commitment Letters have not been amended, restated, modified or otherwise waived, and none of the Financing Commitment Letters has commitments contained in such letter have been withdrawn, terminated, repudiated, rescinded, amended, amended modified or rescinded in any respect; provided that the existence or exercise of any “market flex” provisions contained in the Debt Commitment Letter shall not be deemed to constitute a modification or amendment of the Debt Commitment Letter and restated or modified(y) except as permitted by Section 7.05, no terms thereunder have been waivedsuch amendment, and no such withdrawalrestatement, modification, termination, repudiation, rescission, amendment, amendment and restatement, modification withdrawal or waiver has occurred, and, to the extent related to any Person that rescission is not an Affiliate of contemplated by Parent, and to the knowledge of Parent, there is no condition existing any other Person, under the Debt Commitment Letter. Parent has fully paid or caused to be paid any and all commitment fees or other fees and expenses required to be paid by it in connection with the Debt Commitment Letter that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification are payable on or waiver, except prior to the extent any date hereof, and will pay, after the date hereof, all such amendment is not prohibited under this Agreementfees and expenses as they become due. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and on the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableClosing Date, the net proceeds contemplated by the Debt Commitment Letter (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) provided thereunder), together with the amount of the Equity Commitment LettersFinancing and any cash, and the net proceeds contemplated by the Debt Financing Commitment Lettermarketable securities, available lines of credit or other sources of immediately available funds, will in the aggregate, aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation Parent to pay the amounts aggregate consideration payable under Article 2 (and any repayment, redemption, satisfaction, discharge or refinancing of debt contemplated by, or required to be paid in connection with the Merger transactions described in, this Agreement or the Debt Commitment Letter (including the Refinancing Debt)) and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required by this Agreement to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement and to pay all related fees and expenses of Parent (collectively, the “Required Amount”). The Commitment Letters are (x) legal, assuming the satisfaction valid and binding obligations of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to Parent’s knowledge, each of the knowledge of Parentother parties thereto, such other Persons party thereto (y) enforceable in accordance with its termstheir respective terms against Parent and each of the other parties thereto, except as enforcement may be limited by bankruptcysubject to the Enforceability Exceptions, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity(z) in full force and effect. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 (x) Parent or Merger Sub any of its Affiliates or any other Person under the Equity Commitment Letter or (y) Parent or, to the knowledge of Parent, any other parties theretoPerson, under any the Debt Commitment Letter. As of the Financing Commitment Letters. Assuming date of this Agreement, subject to the satisfaction of the conditions set forth contained in Section 7.01 Section 9.01 and Section 7.02 on the Closing Date, as of the date hereofSection 9.02, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis any term or condition of the Commitment Letters required to be satisfied by it, that the conditions thereof will not otherwise be satisfied on or prior to the Closing Date or that the full amount under of the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the The only conditions precedent and or other conditions contingencies related to the obligations of Debt Financing Sources and the parties thereunder providers of the Equity Financing to make fund the full amount of the Equity Financing available to Parent on are those expressly set forth in the terms thereinCommitment Letters. As of the date hereofof this Agreement, there are no side letters or other agreements, contracts or written arrangements or understandings (other than customary engagement and fee credit letters with respect to the offering of debt securities referenced in the Debt Commitment Letter to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect directly or indirectly related to the availability or conditionality of all or any portion of the Equity Financing on necessary to fund the Closing Date, Required Amount other than as expressly set forth contained in the Equity Commitment Letter provided Letters and delivered to the Company prior to the execution and delivery of this Agreement. As of the date hereof, Parent has fully paid (or caused to be fully paid) all commitment fees or other fees and expenses which are due and payable on or prior to the date hereof pursuant to the terms of the Debt Commitment Letter and will pay, after the date hereof, all such fees as they come due. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. of Parent and Merger Sub acknowledge acknowledges and agree agrees that their obligation the availability of the Financing shall not be a condition to the obligations of Parent and Merger Sub to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingother transactions contemplated hereby and thereby.
Appears in 1 contract
Financing. Parent has delivered Buyer’s obligation to consummate the Company true, correct and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred Transactions is not subject to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) any conditions regarding Buyer’s ability to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Termsobtain financing. As of the date hereof, none Buyer has provided Seller with a true and complete copy of the Financing Commitment Letters has been withdrawna commitment letter (including all annexes, terminatedexhibits, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waivedschedules, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”attachments thereto), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, dated as of the date hereof, by and between Parent does not have any reason and the Debt Financing Sources party thereto (the “Debt Financing Commitment”), pursuant to believe that which, upon the full amount under terms and subject to the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereofconditions set forth therein, the Equity Commitment Letter contains all of Debt Financing Sources party thereto have agreed to lend the conditions precedent and other conditions to amounts set forth therein for the obligations of purposes set forth therein (the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein“Debt Financing”). As of the date hereof, there are no side letters letters, understandings, or other agreementsContracts or arrangements, arrangements whether written or understandings oral, to which Parent or any Equity Investor is of its Affiliates are a party that would adversely affect contain any conditions precedent to the availability funding of the Equity Financing on full amount of the Closing DateDebt Financing, other than the Debt Financing Commitment and the executed closing payment letters referred to in the Debt Financing Commitment (each, a “Debt Financing Closing Payment Letter” and collectively, the “Debt Financing Closing Payment Letters”) (a customarily redacted copy of which has been provided to Seller) and the Credit Agreement (as defined in the Debt Financing Commitment). As of the date hereof, the Debt Financing Commitment is in full force and effect, and has not been amended, modified, withdrawn, or rescinded in any respect, and no amendment, modification, withdrawal, or rescission is contemplated or the subject of current discussions. Assuming due authorization, execution, and delivery of the parties thereto (other than Parent), the Debt Financing Commitment is the legal, valid, and binding obligation of Parent and, to the Knowledge of Parent, the other parties party thereto, in each case, subject to the Enforceability Exceptions. As of the date hereof, there are no conditions precedent or other contractual contingencies (directly or indirectly) related to the funding of the full amount of the Debt Financing at Closing other than the conditions to Closing set forth herein and the conditions expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereofDebt Financing Commitment. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.As of
Appears in 1 contract
Samples: Asset Purchase Agreement (Priority Technology Holdings, Inc.)
Financing. Parent Buyer has delivered to the Company a true, correct and complete copies, as copy of an executed debt commitment letter dated the date hereof, of hereof and addressed to Buyer from Xxxxxxx Xxxxx Bank USA (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity FinancingGoldman”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) pursuant to which Goldman has committed to provide, on upon the terms and subject only to the conditions expressly stated set forth therein, debt financing in the amounts set forth thereintherein for the purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Debt Financing”) and each fee letter entered into by Buyer or any of its Affiliates in connection therewith (such debt commitment letter and fee letters, together with all exhibits, schedules and annexes thereto, collectively, the “Debt Commitment Letters”); provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive informationterms, in none of which could affect the fee letter entered into in connection with conditionality, availability, amount, timing or termination of the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Termsbe redacted. As of the date hereof, none of the Financing Debt Commitment Letters has have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated supplemented or otherwise modified, and no terms or commitments or other obligations thereunder have been waived, withdrawn, terminated, rescinded, repudiated, amended, supplemented or otherwise modified, and no such waiver, withdrawal, termination, rescission, repudiation, rescission, amendment, amendment supplement or modification is contemplated. Buyer has fully paid any and restatement, modification all commitment fees or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification other fees incurred or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded payable in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance connection with the Debt Financing Commitment Letter, as applicable, and required to be paid on or prior to the net date hereof. The proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by of the Debt Financing (both before and after giving effect to any “flex” provisions contained in the Debt Commitment LetterLetters), will in the aggregateaggregate be, be together with unrestricted cash of the Buyer as of Closing, sufficient for Parent, Merger Sub and the Surviving Corporation Buyer to pay the aggregate Closing Consideration and pay all other amounts required to be paid by Buyer in connection with the Merger transactions contemplated by this Agreement and the other transactions contemplated herebyDebt Commitment Letters (including, including payment without limitation, the repayment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt indebtedness of the Company and its Subsidiaries contemplated by this AgreementAgreement and the payment of all fees, to pay any other amounts costs and expenses required to be paid by Parent or Merger Sub on or prior to the Buyer at Closing Date in connection with the consummation of Transactions and the transactions contemplated by this Agreement Debt Commitment Letters) (the amount sufficient to make such payments, the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing The Debt Commitment Letters are in full force and effect and assuming the satisfaction or waiver as of the conditions set forth date hereof, and the Debt Commitment Letters constitute valid and binding obligations of Buyer and, to the knowledge of Buyer, the other parties thereto, enforceable against Buyer and, to the knowledge of Buyer, each other party thereto, in Section 7.01 and Section 7.02 on accordance with their terms, subject to the Closing DateGeneral Enforceability Exceptions. As of the date hereof, Parent Buyer has no reason to believe knowledge that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Debt Commitment Letters. Assuming the satisfaction accuracy of the conditions Company’s representations and warranties set forth in Section 7.01 this Agreement and Section 7.02 on performance by the Closing DateCompany of its obligations hereunder, as of the date hereof, Parent does not have any Buyer has no reason to believe that any of the conditions to the Debt Financing will not be satisfied on a timely basis or that the full amount under of the Debt Financing Commitment Letters necessary to fund the Required Amount will not be made available to Parent or Buyer on a timely basis in order to consummate the Merger Sub on and the Closing Dateother transactions contemplated hereby. As of the date hereof, the Equity Commitment Letter contains all of the There are no conditions precedent and other conditions or contingencies to the obligations of the parties thereunder under the Debt Commitment Letters (including pursuant to any “flex” provisions or otherwise) to make the full amount of the Equity Debt Financing necessary to fund the Required Amount available to Parent Buyer on the Closing Date upon the terms thereinset forth therein except as expressly set forth in the Debt Commitment Letters. As of the date hereof, there are no side letters or other agreements, Contracts or arrangements or understandings to which Parent Buyer or any Equity Investor of its Affiliates is a party related (directly or indirectly) to the funding or investing, as applicable, of the full amount of the Debt Financing that would adversely could affect the availability conditionality, availability, amount, timing or termination of the Equity Debt Financing on the Closing Date, other than expressly as expressly set forth in the Equity Debt Commitment Letter provided to the Company on or prior to the date hereofLetters. Each Equity Commitment Letter provides, Buyer acknowledges and will continue to provide, agrees that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate obtaining of the Merger and pay the Aggregate Merger Consideration Debt Financing, or any Alternative Financing, is not conditioned on the availability of Debt Financinga condition to Closing.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date hereofof this Agreement, of (i) each fully an executed equity investment agreement (together with any related documents delivered to the Company in connection therewith, the “Equity Commitment Letter Investment Agreement”) by and among HS Investment L.P. (the financing provided for “Equity Provider”), Ontario Teachers’ Pension Plan Board, as guarantor, and Parent, pursuant to which the Equity Provider has agreed to invest, subject to the terms and conditions therein, cash in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”) and (ii) a fully an executed commitment letter and Redacted Fee Letters (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment LettersInvestment Agreement, the “Financing Commitment LettersDocuments”) from the financial institutions identified therein (including any lenders who become party thereto by joinder, the “Lenders”) to provide, on subject to the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (collectively the “market flexDebt Financing,” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Equity Financing and any other equity financing of Parent undertaken to finance the Acquisition, the “Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms”). As of the date hereof, none of the Financing Commitment Letters Equity Investment Agreement has not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder such amendment or modification is contemplated and the obligations and commitments contained in the Equity Investment Agreement have not been waivedwithdrawn, modified or rescinded in any respect. As of the date hereof, the Debt Commitment Letter has not been amended or modified (subject to any flex provisions in the Redacted Fee Letter), no such amendment or modification is contemplated, and no such withdrawalthe obligations and commitments contained in the Debt Commitment Letter have not been withdrawn, termination, repudiation, rescission, amendment, amendment modified or rescinded in any respect. Parent or Merger Sub has fully paid any and restatement, modification all commitment fees or waiver has occurred, and, other fees in connection with the Equity Investment Agreement and the Debt Commitment Letter that are payable on or prior to the extent related to any Person that is not an Affiliate of Parentdate hereof, Parent has issued the Execution Warrants (as defined in the Equity Investment Agreement) pursuant to the knowledge of Parentterms thereof, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except Parent and the Equity Provider have executed the Nominating Rights Agreement and the Shareholders Agreement appended to the extent any Equity Investment Agreement and such amendment is not prohibited under this Agreementagreements will be effective as of the Closing as so executed. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters Investment Agreement and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Investment Agreement and Debt Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, Letter will in the aggregate, aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the aggregate Merger Consideration (and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase repayment or refinancing of debt of the Company and its Subsidiaries contemplated by this AgreementAgreement or the Financing Documents), to pay and any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally pay all related fees and by general principles of equityexpenses. As of the date hereof, the Financing Commitment Letters Documents are (i) valid and binding obligations of Parent and, to the knowledge of Parent, of each of the other parties thereto (subject to the Enforceability Exceptions) and (ii) in full force and effect and assuming the satisfaction or waiver effect. As of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Datedate of this Agreement, Parent has no reason to believe that any 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 Parent, Merger Sub or, to the knowledge of Parent, any other parties thereto, or any failure to satisfy a condition precedent, under the Equity Investment Agreement or the Debt Commitment Letter; provided that Parent is not making any representation or warranty regarding the effect of the Financing Commitment Letters. Assuming the satisfaction inaccuracy of the conditions set forth representations and warranties in Section 7.01 and Section 7.02 on the Closing Date, Article IV (it being acknowledged that Parent is not aware of any such inaccuracy as of the date hereof, ). As of the date of this Agreement Parent does not have any reason to believe that any of the full amount under conditions to the Financing Commitment Letters will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the Closing Date. As date of and at the Closing; provided that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties in Article IV (it being acknowledged that Parent is not aware of any such inaccuracy as of the date hereof, the Equity Commitment Letter contains ). The Financing Documents contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereintherein and all of the provisions that would permit the Lenders or the Equity Provider to reduce the total amount of the Financing. As of the date hereof, there are no side letters or other agreements, Contracts or arrangements or understandings to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability funding or investing, as applicable, of the Equity full amount of the Financing on the Closing Date, other than as expressly set forth in the Financing Documents. Parent possesses an irrevocable written consent from, and duly authorized and executed by, Xxxxxx’x Bay Company Luxembourg S.a.r.L. , which is the only consent required under applicable Law or stock exchange rule or regulation to satisfy the condition set forth in Section 5.1(10) of the Equity Commitment Letter Investment Agreement (and which consent has been provided to the Company on or prior to the date hereof. Each Equity Commitment Letter providesof this Agreement), and Parent will continue cause such consent to provideremain effective and not to be withdrawn or modified or amended in any material manner between the date of this Agreement and the Effective Time. As of the date of this Agreement, that Parent has received conditional approval from the Company is a third party beneficiary thereof as TSX which approval, together with the written consent referred to above, would satisfy the condition set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate in Section 5.1(10) of the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingEquity Investment Agreement.
Appears in 1 contract
Financing. Concurrently with the execution of this Agreement, Parent has obtained and delivered to the Company a true, correct complete and complete copiesfully executed debt commitment letter, dated as of the date hereof (such letter, together with all annexes and exhibits attached thereto and the executed fee letter, dated as of the date hereof, of (i) each fully executed Equity Commitment Letter (as amended, modified, waived, supplemented, extended or replaced in accordance with the financing provided for terms therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibitsherein, schedules, and annexes thereto) and fee letter from the financial institutions identified thereincollectively, the “Debt Financing Commitment Letter” and”), together with pursuant to which the Equity Commitment LettersFinancing Sources have committed, the “Financing Commitment Letters”) subject solely to provide, on the terms and subject only conditions expressly set forth in the Commitment Letter, to lend to the conditions expressly stated therein, debt financing in Subsidiaries of Parent named therein (the “Borrowers”) the amounts set forth therein; provided that fee amounts and pricing termstherein for, including terms among other things, the purposes of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none the Commitment Letter, in the form so delivered, is in full force and effect in accordance with the terms thereof and is the legal, valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto, subject to the Bankruptcy and Equity Exceptions. As of the Financing date of this Agreement, to the knowledge of Parent, no such commitment provided for in the Commitment Letters Letter has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated supplemented or modified, no terms thereunder have been waivedin any respect, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, supplement or modification or waiver has occurred, and, is contemplated other than as set forth in the Commitment Letter with respect to the extent related Parent’s ability to any Person that is not an Affiliate of add additional arrangers thereunder. Neither Parent, nor, to the knowledge of Parent, there any other counterparty thereto has committed any material breach of any of its covenants or other obligations set forth in, or is no condition existing that would require any such withdrawalin default under, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, and, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing date of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred whichor circumstance exists that, with or without notice, lapse of time or both, would or would reasonably be expected to (a) constitute or result in a material breach or default or breach on the part of Parent any Person under the Commitment Letter, (b) constitute or Merger Sub or, result in a failure to the knowledge of Parent, any other parties thereto, under satisfy any of the terms or conditions set forth in the Commitment Letter, (c) make any of the assumptions or any of the statements set forth in the Commitment Letter inaccurate in any material respect or (d) otherwise result in any portion of the Financing Commitment Lettersnot being available. Assuming As of the date of this Agreement, assuming satisfaction or waiver of the conditions set forth in Section 7.01 9.1 and Section 7.02 on 9.2 and the Closing Date, as of compliance in all material respects by the date hereofCompany with Section 8.4, Parent does not have any has no reason to believe (both before and after giving effect to any “flex” provisions contained in the Commitment Letter) that Parent will be unable to satisfy, on a timely basis, any term or condition to be satisfied by it contained in the Commitment Letter or that the full amount under amounts committed pursuant to the Financing Commitment Letters Letter will not be available to Parent or Merger Sub on as of the Closing Date. As of if the date hereof, terms or conditions to be satisfied by them contained in the Equity Commitment Letter contains all of the are satisfied. There are no conditions precedent and (directly or indirectly) or other conditions related to the obligations of Financing and the parties thereunder to make the full amount of the Equity Financing available to Parent on funding thereof other than the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as thereof expressly set forth in the Equity Commitment Letter. Other than the Commitment Letter and the fee letter contemplated therein, there are no other contracts or written agreements (or other arrangements or agreements that are material) entered into by the Parent or any Affiliate thereof that are materially related to the funding of the Financing (except for (i) customary engagement letters, true and correct copies of which have been provided to the Company on or prior to and (ii) customary non-disclosure agreements which do not impact the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that conditionality of the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing).
Appears in 1 contract
Financing. Parent has delivered to the Company true, correct complete and complete copiesfully executed copies of commitment letters from Mxxxxx Sxxxxxx Senior Funding, Inc., together with the executed fee letter related thereto of even date herewith (which such fee letter may be redacted so long as no redaction covers terms that would adversely affect the aggregate amount, conditionality, availability or termination of the date hereof, of (i) each fully executed Equity Commitment Letter (the debt financing provided for therein being collectively referred to as the “Equity Financing”contemplated therein) and (ii) a fully executed commitment letter (together with all any related exhibits, schedules, annexes, supplements, term sheets and annexes thereto) and fee letter from other agreements, which provide such lenders’ respective commitments to provide Parent with debt financing in connection with the financial institutions identified thereintransactions contemplated hereby in the amount set forth therein (collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide(such debt financing, on the terms “Financing”). Each of the Commitment Letters is in full force and subject only effect and is a valid and binding obligation of Parent and, to the conditions expressly stated thereinKnowledge of Parent, debt financing in the amounts set forth therein; provided that fee amounts and pricing termsother parties thereto, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted subject to the extent, in each case, they are Permissible Redacted TermsBankruptcy and Equity Exception. As of the date hereof, none of the Financing Commitment Letters has have been amended or modified, and the respective commitments contained in the Commitment Letters have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated rescinded or modified, no terms thereunder have been waived, otherwise modified (and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, rescission or modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”contemplated), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, there are no side letters or other arrangements relating to the Financing Commitment Letters are in full force and effect and assuming (other than the satisfaction or waiver fee letter provided to the Company under this Section 4.21). As of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Datedate hereof, Parent has fully paid, or caused to be fully paid, any and all commitment fees or other fees that have been incurred and are due and required to be paid as of the date hereof in connection with the Commitment Letters. As of the date hereof, no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any term or condition of the Commitment Letters, or otherwise result in any portion of the Financing Commitment Letterscontemplated thereby to be unavailable. Assuming There are no conditions precedent or other contingencies related to the satisfaction funding of the conditions full amount of the Financing, other than as set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available in the form so delivered to Parent or Merger Sub on the Closing DateCompany. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions Parent has no reason to believe that any term or condition to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided Letters will not be fully satisfied on a timely basis or that the Financing will not be available to Parent at the Company on Closing. The aggregate proceeds of the Financing, together with the cash or other sources of immediately available funds that Parent has or will have prior to the date hereof. Each Equity Commitment Letter providesClosing, are in an amount sufficient to enable it to consummate the Merger and will continue the other transactions contemplated hereby, to provide, that the Company is a third party beneficiary thereof as set forth thereinrefinance any indebtedness required to be refinanced in connection therewith and to pay any related fees and expenses. Parent and Merger Sub expressly acknowledge and agree that that, notwithstanding anything in this Agreement to the contrary, their obligation obligations hereunder, including their obligations to consummate the Merger and pay Closing, are not subject to, or conditioned on, receipt of the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingFinancing or any alternative financing.
Appears in 1 contract
Financing. Parent Purchaser has delivered provided to the Company true, correct a true and complete copiescopy, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully an executed commitment letter from the financial institutions identified therein and a corresponding fee letter (which may be redacted solely to omit fee amounts and the economic terms of the "market flex" items in a customary manner, and none of which redactions would reduce the aggregate principal amount, adversely affect the conditions to funding or availability of the Debt Financing or otherwise limit, prevent, impede or delay the consummation of the Debt Financing) (as amended, modified or supplemented in accordance with the terms herein, the "Fee Letter") (together with all exhibits, schedulesannexes, schedules and annexes thereto) term sheets attached thereto and fee letter as may be amended, supplemented, modified, replaced or extended from time to time to the financial institutions identified thereinextent permitted by Section 7.15, collectively, the “"Debt Financing Commitment Letter” and"), together with the Equity Commitment Lettersproviding, the “Financing Commitment Letters”) subject to provide, on the terms and subject only to the conditions expressly stated therein, debt financing financings in the amounts set forth therein; provided that fee amounts therein for the purpose of funding the Transactions (the applicable debt financing under the Debt Commitment Letter is referred to herein as the "Debt Financing"). The execution, delivery and pricing terms, including terms performance of the “market flex” Debt Commitment Letter by Purchaser and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated thereby, have been duly and validly authorized by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Dateall requisite corporate action by Purchaser. Each Financing The Debt Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub i) has been duly and validly executed by Purchaser and (ii) is a party thereto) legal, valid and binding obligation of Purchaser and, to the knowledge Knowledge of ParentPurchaser, such the other Persons party thereto parties thereto, in accordance with its terms, each case except as enforcement enforceability may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally the Bankruptcy and by general principles of equityEquity Exception. As of the date hereof, the Financing Debt Commitment Letters are Letter is in full force and effect and assuming the satisfaction respective obligations and commitments contained in the Debt Commitment Letter have not been withdrawn, rescinded or waiver terminated or otherwise amended or modified in any respect, and no withdrawal, rescission, amendment or modification thereof is contemplated by Purchaser or, to the Knowledge of Purchaser, any other party thereto, or the subject of any discussions with Purchaser or, to the Knowledge of Purchaser, any other party thereto (other than any customary amendment to include new lenders, lead arrangers or other financial institutions or as expressly provided for thereunder upon obtaining (or not obtaining) the Amendment (as defined therein)). As of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Datedate hereof, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub Purchaser or, to the knowledge Knowledge of ParentPurchaser, any other parties thereto, under any of the Financing other parties to the Debt Commitment LettersLetter. Assuming (i) the satisfaction accuracy of the conditions representations in all material respects set forth in Articles III, IV and V, (ii) the performance by the Company and its Subsidiaries of the covenants and agreements set forth in Section 7.01 7.1, and Section 7.02 (iii) that the Debt Financing is funded in accordance with its terms, the net proceeds from the Debt Financing, together with cash on hand of Purchaser and cash on hand of the Closing DateCompany and its Subsidiaries, will be sufficient for Purchaser to consummate the Transactions, including the repayment of any Indebtedness of the Company and its Subsidiaries contemplated by this Agreement or the Debt Commitment Letter and the payment of the maximum amount of all related fees and expenses (including all indicative, "flex" and other fees and original issue discount) payable by Purchaser in connection with the Transactions. Purchaser has paid in full any and all commitment or other fees required in connection with the Debt Commitment Letter that are due as of the date hereof. The only conditions precedent to the obligations of the Debt Financing Sources to fund the full amount of the Debt Financing are those expressly set forth in the Debt Commitment Letter, Parent and assuming the accuracy of the representations in all material respects set forth in Articles III, IV and V and the performance of the covenants and agreements set forth in this Agreement by each of the Company and its Subsidiaries, Purchaser does not have any reason to believe that any of the full amount under conditions to the Debt Financing Commitment Letters will not be satisfied or that the Debt Financing will not be available to Parent or Merger Sub Purchaser on the Closing Date. As date of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms thereinClosing. As of the date hereof, there There are no side letters or other agreementsContracts or any understandings, arrangements conditions or understandings contingencies (except for the Fee Letter), relating to or affecting the Debt Financing to which Parent Purchaser or any Equity Investor of its Subsidiaries or any of their respective Affiliates is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Debt Commitment Letter provided that would (i) impair the enforceability of the Debt Commitment Letter, (ii) impose new or additional conditions precedent to the Company on Debt Financing, (iii) reduce the aggregate principal amount of the Debt Financing that is available at the Closing or prior to (iv) otherwise materially limit, prevent, impede or delay the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that consummation of the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Financing. Parent Lessee acknowledges that Lessor has delivered to advised Lessee that Lessor has obtained financing secured by, among other things, the Company trueXxxxxxx/Xxxxx/Xxxxxxx Assets and this Agreement. In connection with such financing, correct Lessor made certain representations, warranties and complete copies, as of the date hereof, of covenants set forth in that certain (i) each fully executed Equity Commitment Letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of September 14, 2010 (the financing provided for therein being collectively referred as amended, restated, supplemented or otherwise modified from time to as time, the “Equity Financing2009 Note Purchase Agreement”) ), a copy of which has been provided to and reviewed by Lessee, (ii) a fully executed commitment letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of July 13, 2010 (together with all exhibitsas amended, schedulesrestated, and annexes thereto) and fee letter supplemented or otherwise modified from the financial institutions identified thereintime to time, the “Debt Financing Commitment Letter2010 Note Purchase Agreement” and, together with the Equity Commitment Letters2009 Note Purchase Agreement, the “Financing Commitment LettersNote Purchase Agreements”), a copy of which has been provided to and reviewed by Lessee and (iii) to provide, on the terms Second Amended and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter Restated Credit Agreement entered into in connection with the Debt Financingby Lessor and dated as of June 28, may have been redacted to the extent2013 (as amended, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amendedrestated, amended and restated restated, supplemented or modifiedotherwise modified from time to time, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, the “Credit Agreement” and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance together with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableNote Purchase Agreements, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the “Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountAgreements”), assuming a copy of which has been provided to and reviewed by Lessee. XXXXXXX/XXXXX/XXXXXXX ASSETS LEASE AGREEMENT Lessee hereby covenants and agrees with Lessor that, during the satisfaction term of the conditions 2009 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.02(aSections 9.08 (Material Project Documents) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub that Lessee is a party theretoto any Material Project Documents, as defined in the 2009 Note Purchase Agreement), 10.04 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As 10.17 (Regulation) of the date hereof2009 Note Purchase Agreement. Lessee hereby covenants and agrees with Lessor that, during the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver term of the conditions 2010 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, Sections 9.8 (Material Project Documents) (to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe extent that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor Lessee is a party that would adversely affect to any Material Project Documents, as defined in the availability 2010 Note Purchase Agreement), 10.4 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and 10.17 (Regulation) of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing2010 Note Purchase Agreement.
Appears in 1 contract
Samples: Lease Agreement (InfraREIT, Inc.)
Financing. Parent Lessee acknowledges that Lessor has delivered to advised Lessee that Lessor has obtained financing secured by, among other things, the Company trueXxxxxxx/Xxxxx/Xxxxxxx Assets and this Agreement. In connection with such financing, correct Lessor made certain representations, warranties XXXXXXX/XXXXX/XXXXXXX ASSETS LEASE AGREEMENT and complete copies, as of the date hereof, of covenants set forth in that certain (i) each fully executed Equity Commitment Letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of September 14, 2010 (the financing provided for therein being collectively referred as amended, restated, supplemented or otherwise modified from time to as time, the “Equity Financing2009 Note Purchase Agreement”) ), a copy of which has been provided to and reviewed by Lessee, (ii) a fully executed commitment letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of July 13, 2010 (together with all exhibitsas amended, schedulesrestated, and annexes thereto) and fee letter supplemented or otherwise modified from the financial institutions identified thereintime to time, the “Debt Financing Commitment Letter2010 Note Purchase Agreement”), a copy of which has been provided to and reviewed by Lessee and (iii) Note Purchase Agreement entered into by Lessor dated as of December 3, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “2015 Note Purchase Agreement” and, together with the Equity Commitment Letters2009 Note Purchase Agreement and the 2010 Note Purchase Agreement, the “Financing Commitment LettersNote Purchase Agreements”), a copy of which has been provided to and reviewed by Lessee, (iv) to provide, on the terms Third Amended and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter Restated Credit Agreement entered into in connection with the Debt Financingby Lessor and dated as of December 10, may have been redacted to the extent2014 (as amended, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amendedrestated, amended and restated restated, supplemented or modifiedotherwise modified from time to time, no terms thereunder have the “2014 Credit Agreement”), a copy of which has been waivedprovided to and reviewed by Lessee and (v) Amended and Restated Credit Agreement entered into by Lessor and dated as of December 3, 2015 (as amended, restated, amended and no such withdrawalrestated, terminationsupplemented or otherwise modified from time to time, repudiationthe “2015 Credit Agreement” and, rescissiontogether with the 2014 Credit Agreement, amendmentthe “Credit Agreements”), amendment a copy of which has been provided to and restatementreviewed by Lessee. The Credit Agreements and the Note Purchase Agreements are referred to herein as the “Debt Agreements”. Lessee hereby covenants and agrees with Lessor that, modification during the term of the 2009 Note Purchase Agreement, Lessee will comply with the covenants set forth in Sections 9.08 (Material Project Documents) (to the extent that Lessee is a party to any Material Project Documents, as defined in the 2009 Note Purchase Agreement), 10.04 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or waiver has occurredDiscount of Receivables), and10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and 10.17 (Regulation) of the 2009 Note Purchase Agreement. Lessee hereby covenants and agrees with Lessor that, during the term of the 2010 Note Purchase Agreement, Lessee will comply with the covenants set forth in Sections 9.8 (Material Project Documents) (to the extent that Lessee is a party to any Material Project Documents, as defined in the 2010 Note Purchase Agreement), 10.4 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and 10.17 (Regulation) of the 2010 Note Purchase Agreement. Lessee hereby covenants and agrees with Lessor that, during the term of the 2015 Note Purchase Agreement, Lessee will comply with the covenants set forth in Sections 9.8 (Material Project Documents) (to the extent that Lessee is a party to any Material Project Documents, as defined in the 2015 Note Purchase Agreement), 10.4 (Terrorism Sanctions Regulations), 10.6 (Sale of Assets, Etc.), 10.9 (Regulation), 10.10 (Amendments to Organizational Documents) and 10.11 (Project Documents) of the 2015 Note Purchase Agreement. Lessee hereby agrees with Lessor that, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated otherwise covered by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment terms of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, (i) Lessee hereby makes the same representations and warranties to pay any other amounts required to be paid by Parent or Merger Sub on or prior Lessor as Lessor makes to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement Lender (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth defined in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.2014 Credit Agreement) in Sections 6.3 XXXXXXX/XXXXX/XXXXXXX ASSETS LEASE AGREEMENT
Appears in 1 contract
Financing. Parent has delivered If any ABL Grantor shall be subject to any Insolvency Proceeding and if ABL Agent consents to the Company true, correct and complete copies, use of cash collateral (as such term is defined in Section 363(a) of the date hereofBankruptcy Code; herein, of (i) each fully executed Equity Commitment Letter (the “Cash Collateral”), on which ABL Agent has a Lien or consents to such ABL Grantor obtaining financing provided for therein being collectively referred under Section 364 of the Bankruptcy Code or any similar provision of any other Bankruptcy Law to as the be secured by ABL Collateral (such financing, a “Equity DIP Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules), and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt if such Cash Collateral use or DIP Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, meets the net applicable DIP Financing Conditions, then Term Loan Agent unconditionally agrees that it will consent to such Cash Collateral use or raise no objection to such DIP Financing, as applicable, and, if DIP Financing is involved, Term Loan Agent will subordinate its Liens in the ABL Collateral (and in any other assets of the ABL Grantors that may serve as collateral (including avoidance actions, or the proceeds contemplated by thereof) for such DIP Financing) to the Equity Commitment LettersLiens securing such DIP Financing. If such Cash Collateral use or DIP Financing, as applicable, meets some, but not all, of the applicable DIP Financing Conditions, then Term Loan Agent unconditionally agrees that it will only withhold its consent to such Cash Collateral use or will only raise an objection to such DIP Financing based upon the DIP Financing Condition(s) which are not met and will not withhold its consent or object on any other basis and, if DIP Financing is involved and any permitted objection of Term Loan Agent is withdrawn, overruled, or otherwise eliminated, Term Loan Agent will subordinate its Liens in the ABL Collateral (and in any other assets of the ABL Grantors that may serve as collateral (including avoidance actions, or the proceeds thereof) for such DIP Financing) to the Liens securing such DIP Financing. Term Loan Agent agrees that it shall not, and nor shall any of the net proceeds contemplated Term Loan Claimholders, directly or indirectly, provide, offer to provide, or support any DIP Financing secured by a Lien on the Debt Financing Commitment LetterABL Collateral senior to or pari passu with the Liens securing the ABL Priority Debt. If, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with any Cash Collateral use or DIP Financing, any Liens on the Merger and ABL Collateral held by the other transactions contemplated herebyABL Claimholders to secure the ABL Debt are subject to a surcharge or are subordinated to an administrative priority claim, including payment a professional fee “carve-out,” or fees owed to the United States Trustee, then the Liens on the ABL Collateral of the Aggregate Merger Consideration, Term Loan Claimholders securing the Term Loan Debt shall also be subordinated to make any repayment, repurchase such interest or refinancing of debt claim and shall remain subordinated to the Liens on the ABL Collateral of the Company and its Subsidiaries contemplated by ABL Claimholders consistent with this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Financing. Prior to or concurrently with the execution of this Agreement, each of Parent and Merger Sub has delivered to the Company true, correct a true and complete copies, as copy of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the . The Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing Letters have not been amended or modified in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, any manner and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, or modification is contemplated or waiver has occurred, and, to the extent related to any Person that is not an Affiliate pending. The proceeds of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and to consummate the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment to enable them to make all payments under Article IV [(Effect of the Aggregate Merger ConsiderationMerger; Exchange of Certificates)], to make pay the Parent Termination Fee (if applicable) under Section 10.3(b) [(Termination Fees and Limitations on Liability)], to pay the Manager Payments and to satisfy any repaymentliabilities arising out of the Willful Breach by Parent, repurchase Merger Sub or refinancing of debt the Parent Related Parties subject to the limitation set forth in Section 10.3(d). Each of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation MIC is an express third-party beneficiary of each Equity Commitment Letter. None of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth commitments contained in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing any Equity Commitment Letter have been withdrawn, terminated or rescinded in any respect and no withdrawal, rescission or termination is enforceable against Parentcontemplated or pending, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred whichthat, with or without notice, lapse of time or both, would would, or would reasonably be expected to to, constitute a default or breach on the part of Parent, Merger Sub, the financing sources named therein, their respective Affiliates, or, to the Knowledge of Parent, any other Person, under any term or condition of any Equity Commitment Letter. Each Equity Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Parent or and Merger Sub orand, to the knowledge of Parent, any other parties theretothe financing sources named therein to provide the financing contemplated thereby, under any of the Financing Commitment Letters. Assuming subject only to the satisfaction or waiver of the conditions set forth in Section 7.01 therein. Notwithstanding anything to the contrary contained herein, the obligations of Parent and Section 7.02 Merger Sub under this Agreement are not contingent on the Closing Date, as availability of financing. As of the date hereofof this Agreement, Parent does not have each Equity Commitment Letter constitutes the entire and complete agreement between the parties thereto with respect to the financings contemplated thereby, and, except as set forth, described or provided for in any reason Equity Commitment Letter, (x) there are no conditions precedent to believe that the full amount obligations of the financing sources named therein to fund the Equity Financing, and (y) there are no contractual contingencies or other provisions under any agreement (including any side letters) relating to the Financing Commitment Letters will not be available transactions contemplated by this Agreement (or otherwise) to which Parent or Merger Sub on any of its Affiliates is a party that would permit the Closing Datefinancing sources named therein to reduce the total amount of the Equity Financing or impose any additional condition precedent to the availability of the Equity Financing. As of the date hereof, the Equity Commitment Letter contains all Parent and Merger Sub have no reason to believe that any of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing will not be satisfied on a timely basis or that the funding contemplated in the Equity Financing will not be made available to Parent and Merger Sub on a timely basis in order to consummate the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth thereintransactions contemplated by this Agreement. Parent and Merger Sub acknowledge are unaware of any fact or occurrence that would reasonably be expected to make any of the statements set forth in any Equity Commitment Letter inaccurate or that would reasonably be expected to cause any Equity Commitment Letter to be ineffective. Parent and agree that Merger Sub have access to sufficient funds to pay when due all of Parent's and Merger Sub's and their obligation to consummate respective Affiliates' fees and expenses associated with the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingtransactions contemplated by this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Macquarie Infrastructure Corp)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereofof this Agreement, of (i) each fully executed Equity Commitment Letter Letters from each of the Sponsors, pursuant to which the Sponsors have committed, on and subject to the terms and conditions set forth therein, to provide equity financing in the amounts set forth therein for the purposes of financing a portion of the Required Uses (the financing provided for therein being collectively referred to as the “Equity Financing”) and ), (ii) a fully an executed debt commitment letter and a Redacted Fee Letter from Credit Suisse AG, Cayman Islands Branch, Credit Suisse Loan Funding LLC, Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., Deutsche Bank AG New York Branch, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., SunTrust Xxxxxxxx Xxxxxxxx, Inc., SunTrust Bank, The Toronto-Dominion Bank, New York Branch and TD Securities (together with all exhibits, schedules, and annexes theretoUSA) and fee letter from the financial institutions identified thereinLLC (together, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, collectively referred to as the “Financing Commitment Letters”) ), pursuant to providewhich the lenders party thereto have committed, on subject to the terms and subject only to the conditions expressly stated set forth therein, to provide debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms therein for the purposes of financing a portion of the Required Uses (being collectively referred to as the “market flex” Debt Financing”, and together with the Equity Financing, collectively referred to as the “Financing”). None of the Financing Letters has been amended or modified prior to the date of this Agreement and, as of the date of this Agreement, no such amendment or modification is contemplated (other commercially sensitive informationthan amendments or modifications to the Debt Commitment Letter solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof) and, as of the date of this Agreement, to the Knowledge of Parent, the respective commitments contained in the Financing Letters have not been withdrawn or rescinded in any respect. Except for engagement letters, fee letter entered into credit letters and non-disclosure agreements with respect to the Financing, as of the date of this Agreement, there are no side letters or agreements to which Parent or Merger Sub or any of their Affiliates is a party related to the funding or investing, as applicable, of the Financing, or which include conditions precedent to the obligations of the parties thereunder, other than as expressly set forth in the Financing Letters delivered to the Company pursuant to this Section 3.7. Parent has fully paid or caused to be fully paid any and all commitment fees or other fees in connection with the Debt Financing, may have been redacted to the extent, in each case, they Financing Letters that are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub payable on or prior to the Closing Date in connection with the consummation date of the transactions contemplated by this Agreement (the “Required Amount”)Agreement, assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming are the satisfaction legal, valid, binding and enforceable obligations of Parent and Merger Sub, as the case may be, and, to the Knowledge of Parent or waiver Merger Sub, each of the other parties thereto, in each case, subject to the Remedies Exception. 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 Section 7.01 and Section 7.02 on the Closing DateFinancing Letters. As of the date of this Agreement, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge Knowledge of ParentParent or Merger Sub, any other parties thereto, party thereto under any of the Financing Commitment Letters. As of the date of this Agreement, assuming that each of the conditions to Closing set forth in Sections 5.1 and 5.2 of this Agreement have been satisfied, Parent has no reason to believe that any of the conditions to the Financing contemplated by the Financing Letters applicable to it will not be satisfied on the Closing Date. Assuming the satisfaction of Financing is funded and/or invested in accordance with the conditions set forth in Section 7.01 Financing Letters, Parent and Section 7.02 Merger Sub will have on the Closing Date, as in the aggregate and together with the available cash and cash equivalents of the date hereofCompany, Parent does not have funds sufficient to (i) pay the aggregate Merger Consideration and the aggregate Company RSU Consideration, (ii) finance the repayment or refinancing of Indebtedness contemplated by this Agreement or either Financing Letter, (iii) pay any reason and all fees and expenses required to believe that the full amount under the Financing Commitment Letters will not be available to Parent or paid by Parent, Merger Sub on and the Closing Date. As of Surviving Corporation in connection with the date hereofMerger and the Financing, the Equity Commitment Letter contains and (iv) satisfy all of the conditions precedent and other conditions to the payment obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereofParent, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay Surviving Corporation contemplated hereunder (collectively, the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing“Required Uses”).
Appears in 1 contract
Financing. Parent has delivered to the Company Attached as Annex I are true, correct accurate and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (iia) a fully executed equity commitment letter pursuant to which the Guarantor has committed to provide or cause to be provided the cash amounts set forth therein to provide equity financing to Parent and/or Merger Sub (together with all exhibits, schedulesthe “Equity Commitment Letter”), and annexes thereto(b) a fully executed debt commitment letter and fee letter from the financial institutions identified thereinrelated term sheets Bank of America, N.A., Xxxxxxx Xxxxx Capital Corporation, General Electric Capital Corporation, Banc of America Securities LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and GE Capital Markets, Inc. (the “Debt Financing Commitment Letter” and, and together with the Equity Commitment LettersLetter, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich, on and subject to the terms and subject only conditions thereof, certain lenders have committed to the conditions expressly stated therein, debt financing provide Parent or Merger Sub with loans in the amounts set forth described therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, of which may be sufficient for Parent, Merger Sub and the Surviving Corporation used to pay the amounts required to be paid in connection with consummate the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement hereby (the “Required AmountDebt Financing” and together with the equity financing pursuant to the Equity Commitment Letter, the “Financing”), assuming the satisfaction . Each of the conditions set forth Financing Commitments, in Section 7.02(a) the form so delivered, is a legal, valid and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, binding obligation of Parent and Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the parties thereto. The Financing Commitment Letters Commitments are in full force and effect and assuming the satisfaction have not been withdrawn or waiver terminated or otherwise amended or modified in any respect. Neither Parent nor Merger Sub is in breach of any of the terms or conditions set forth in Section 7.01 therein and Section 7.02 on to the Closing Date, knowledge of Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a default breach or breach on the part of failure to satisfy a condition precedent set forth therein. Parent or Merger Sub or, to the knowledge of Parent, has paid any and all commitment or other parties thereto, under any of fees required by the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Commitments that are due as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters and will not be available to Parent or Merger Sub on the Closing Date. As of pay, after the date hereof, all such commitments and fees as they become due. The proceeds from the Equity Commitment Letter contains Financing constitute all of the financing required for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement, including the payment of the Merger Consideration and the Option and Stock-Based Consideration (and any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation). The Financing Commitments contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As , and neither Parent nor Merger Sub has knowledge of the date hereof, there are no side letters facts or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party circumstances that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in cause any conditions precedent to the Equity Commitment Letter provided or the Debt Commitment Letter not to be satisfied on a timely basis. Notwithstanding anything in this Agreement to the Company on contrary, the Debt Commitment Letters may be superseded at the option of Parent or Merger Sub after the date of this Agreement but prior to the date hereofEffective Time by the New Financing Commitments in accordance with Section 5.11. Each Equity Commitment Letter providesIn such event, and will continue the term “Financing Commitment” as used herein shall be deemed to provide, that include the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation New Financing Commitments to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingextent then in effect.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct true and complete copiescopies of (i) the executed commitment letters, dated as of the date hereof, of hereof (i) each fully executed the “Equity Commitment Letter Letters”), among Parent, Sub and the other parties thereto (the “Equity Financing Sources” and, together with the Debt Financing Sources, the “Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject only to the terms thereof, to provide the cash and rollover equity financing provided for described therein being collectively referred at the date and time at which the Closing is required to as occur pursuant to Section 1.02 and to which the Company is an express third-party beneficiary (the “Equity Financing”) ), and (ii) a fully an executed commitment letter (together with all the term sheet and any other annexes, exhibits, schedulesschedules and other attachments thereto), dated as of the date hereof (as may be amended, restated, amended and annexes thereto) and fee letter from the financial institutions identified thereinrestated, replaced, substituted, supplemented, waived or otherwise modified in accordance with Section 5.07 of this Agreement (including in connection with any Second Lien Giveaway or Replacement Commitment Facility), the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) from the Debt Financing Sources listed therein, pursuant to providewhich the Debt Financing Sources party thereto from time to time have committed, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that , to provide the Debt Financing. Parent has also delivered to the Company true and complete copies of any fee amounts and letter relating to the Debt Commitment Letter (with only the fee amounts, pricing terms, including terms pricing caps, flex provisions and certain other customary economic provisions (none of the “market flex” and other commercially sensitive information, which individually or in the fee letter entered into in connection with aggregate would reduce the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As amount of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability or conditionality of the Equity Debt Financing on or prevent or delay the Closing DateClosing) redacted) (any such fee letter, other than as expressly set forth may be amended, restated, amended and restated, replaced, substituted, supplemented, waived or otherwise modified in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter providesaccordance with Section 5.07, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing“Fee Letter”).
Appears in 1 contract
Financing. Parent (a) Seller has delivered to the Company Buyer true, correct and complete copies, as of the date hereofof this Agreement, of (i) each fully an executed Equity Commitment Letter bridge loan agreement (the financing provided for therein being collectively referred to as the “Equity FinancingBridge Loan Facility”) and (ii) a fully executed commitment the related fee letter (together with all exhibits, schedules, redacted solely to exclude any fees (and annexes theretorelated provisions) for which Seller and its Subsidiaries are not and would not be responsible or liable) from the Financing Sources identified therein (the Bridge Loan Facility and such fee letter from the financial institutions identified thereintogether, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment LettersBridge Loan Commitment”) to provide, on subject to the terms and subject only to the conditions expressly stated therein, debt financing in the form of bridge loans in the amounts set forth therein; provided that fee amounts and pricing terms, including terms therein (the “Bridge Loan”). (b) As of the “market flex” and other commercially sensitive informationdate hereof, the Bridge Loan Commitment has not been amended or modified prior to the date hereof, and, as of the date hereof, the commitments contained in the fee letter entered into Bridge Loan Commitment have not been withdrawn, terminated or rescinded in connection with any respect. -26- Assuming the Debt FinancingBridge Loan financing is consummated, may have been redacted the aggregate proceeds thereof would be sufficient for Seller to repay and discharge all obligations in respect of the Senior Secured Term Loan, the Amended and Restated ABL Facility and the Series A-2 Notes (the “Specified Indebtedness”). The Bridge Loan is not subject to any conditions precedent or other contingencies other than as set forth in the Bridge Loan Commitment and, as of the date hereof, the Bridge Loan Commitment is (x) in full force and effect and no breach of any term of, or default under, the Bridge Loan Commitment exists and (y) the legal, valid, binding and enforceable obligations of Seller and, to the extentknowledge of Seller, in each case, they are Permissible Redacted Termsof the other parties thereto. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent Seller has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters thereunder will not be satisfied on a timely basis or that the financing contemplated by the Bridge Loan Commitment will not be made available to Parent or Merger Sub on Seller at the Closing DateFunding Time. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.ARTICLE IV
Appears in 1 contract
Samples: HTM Stock Purchase Agreement
Financing. Parent Concurrently with the execution of this Agreement, (i) Purchaser has delivered to the Company a true, correct and complete copiescopy of an executed commitment letter addressed to Purchaser and the Company, as of dated the date hereof, of hereof (i) each fully executed the “Equity Commitment Letter Letter”), from OMERS Administration Corporation (the “Equity Investor”) to provide debt and/or equity financing provided for therein being collectively referred to as Purchaser in an aggregate amount not less than $117,370,000 (the “Equity Financing”) ), and (ii) a the Company has delivered to Purchaser an amendment or waiver to the Revolving Credit Facility fully executed commitment letter by all parties to the Revolving Credit Facility (together with all exhibits, schedules, the “Waiver”) that waives any default or prepayment event that would otherwise result from execution and annexes thereto) and fee letter from the financial institutions identified thereindelivery of this Agreement, the “Debt Financing Commitment Letter” and, together with Merger or the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Termstransactions contemplated hereby. As of the date hereof, none each of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereofPurchaser, the Financing Commitment Letters are Waiver, is in full force and effect and assuming the satisfaction or waiver a legal, valid and binding obligation of the conditions set forth parties thereto. Each of the Equity Commitment Letter and, to the knowledge of Purchaser, the Waiver, has not been withdrawn, terminated or otherwise amended or modified in Section 7.01 any respect, Purchaser has not received notice of any such withdrawal or termination and Section 7.02 on the Closing Date, Parent has no reason to believe that any such amendment or modification is contemplated. 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 on the part of Parent Purchaser or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any term or condition of the Equity Commitment Letter or the Waiver. The Equity Commitment Letter and the Revolving Credit Facility, as modified by the Waiver (collectively, the “Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date”) constitute, as of the date hereof, Parent does not have any reason the entire and complete agreement between the parties thereto with respect to believe that the full amount under the Financing Commitment Letters will not be available to Parent financings contemplated thereby, and, except as set forth, described or Merger Sub on the Closing Date. As of the date hereof, provided for in the Equity Commitment Letter contains all of the Letter, (x) there are (1) no conditions precedent and other conditions to the obligations of the parties thereunder Equity Investor to make fund the full Equity Financing, or (2) conditions precedent to the effectiveness of the Waiver (the “Debt Financing” and together with the Equity Financing, the “Financing”), and (y) there are no contractual contingencies or other provisions under any agreement (including any side letters) relating to the transactions contemplated by this Agreement to which Purchaser or any of its Affiliates is a party that would permit the Equity Investor or any of the lenders to reduce the total amount of the Financing or impose any additional condition precedent to the availability of the Equity Financing available or any additional condition precedent to Parent on the terms therein. As availability of the date hereof, there Debt Financing. There are no side letters or other agreements, Contracts or arrangements related to the funding or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability investing, as applicable, of the Equity Financing on the Closing Date, other than as expressly set forth in the Financing Commitment Letters. The Company is a third-party beneficiary of the Equity Commitment Letter provided Letter. As of the date hereof, assuming the truth and accuracy of the Company’s representations and warranties contained in this Agreement, Purchaser has no reason to believe that any of the conditions to the Company Financing will not be satisfied on a timely basis or that the funding contemplated in the Financing will not be made available to Purchaser and the Company, as the case may be, on a timely basis in order to consummate the transactions contemplated by this Agreement. Purchaser has fully paid any and all fees required by the Waiver to be paid on or prior to the date hereof. Each Subject to its terms and conditions, the aggregate proceeds of the Equity Financing, when funded in accordance with the Equity Commitment Letter providesLetter, will provide financing sufficient to pay the aggregate Merger Consideration, the amounts due under Section 3.3, the aggregate amount of any indebtedness of the Company and its Subsidiaries which becomes due and payable in connection with the Merger or the other transactions contemplated hereby (after giving effect to the Waiver), all fees and expenses associated with the Waiver, all other amounts to be paid or repaid by Purchaser under this Agreement (whether payable on or after the Closing Date), all of Purchaser’s and its Representatives’ fees and expenses associated with the Merger and the other transactions contemplated by this Agreement and all fees and expenses of the Company (up to $4,000,000) associated with the Merger and the other transactions contemplated by this Agreement. Concurrently with the execution of this Agreement, Purchaser has delivered to the Company the Limited Guarantee of the Guarantor. The Limited Guarantee is in full force and effect and a legal, valid and binding obligation of the Guarantor, and will continue no event has occurred that, with or without notice or lapse of time or both, would reasonably be expected to provideresult in a breach of, that or a default under, the Company is a third party beneficiary thereof as Limited Guarantee on the part of the Guarantor, and the Limited Guarantee guarantees delivery of the Purchaser Breach Termination Fee and Purchaser Financing Termination Fee, on the terms and subject to the conditions set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Golfsmith International Holdings Inc)
Financing. Section 4.4 of the Parent has delivered to the Company Disclosure Letter sets forth true, correct accurate and complete copies, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the equity commitment letters to provide equity financing provided for therein being collectively referred to as the “Equity Financing”) and Parent and/or Merger Sub, (ii) a fully the Rollover Commitments, (iii) executed debt commitment letter letters and related term sheets (the “Debt Commitment Letters” and together with all exhibitsthe equity commitment letters described in clause (i), schedulesthe “Financing Commitments”) pursuant to which, and annexes thereto) subject to the terms and fee letter from conditions thereof, certain lenders have committed to provide Parent or the financial institutions identified Surviving Corporation with loans in the amounts described therein, the proceeds of which may be used to consummate the Merger and the other transactions contemplated hereby (the “Debt Financing Commitment LetterFinancing” and, together with the Equity Commitment Lettersequity financing referred to in clause (i) and the Rollover Commitments, the “Financing Commitment LettersFinancing”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereof, none each of the Financing Commitment Letters has been withdrawnCommitments, terminatedin the form so delivered, repudiatedis a legal, rescinded, amended, amended valid and restated binding obligation of Parent or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, andMerger Sub, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable’s Knowledge, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt other parties thereto. The Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters Commitments are in full force and effect and assuming have not been withdrawn or terminated (and no party thereto has indicated an intent to so withdraw or terminate) or otherwise amended or modified in any respect (except that it is acknowledged that, following the satisfaction or waiver date hereof, amounts committed pursuant to the equity commitment letters referred to in clause (i) are contemplated to be decreased in amounts equal to the increase in equity provided by the cash and rollover equity value represented by new Rollover Commitments) and neither Parent nor Merger Sub is in breach of any of the terms or conditions set forth in Section 7.01 therein and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a default material breach or breach on failure to satisfy a condition precedent set forth therein. Assuming that the part number of shares to be rolled over pursuant to the Rollover Commitments are contributed to Parent or one of its Subsidiaries prior to the Effective Time, the proceeds from the Financing constitute all of the financing required for the consummation of Merger and the other transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement, including the payment of the Merger Consideration and the Option and Stock-Based Consideration. Parent or Merger Sub or, has fully paid any and all commitment fees or other fees on the dates and to the knowledge of Parent, any other parties thereto, under any of extent required by the Financing Commitment LettersCommitments. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the The Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains Commitments contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As Notwithstanding anything in this Agreement to the contrary, the Debt Commitment Letters may be superseded at the option of Parent or Merger Sub after the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or this Agreement but prior to the date hereofEffective Time by the New Financing Commitments in accordance with Section 5.10. Each Equity Commitment Letter providesIn such event, and will continue the term “Financing Commitment” as used herein shall be deemed to provide, that include the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation New Financing Commitments to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingextent then in effect.
Appears in 1 contract
Financing. Parent Lessee acknowledges that Lessor has delivered to advised Lessee that Lessor has obtained financing secured by, among other things, the Company trueERCOT Transmission Assets and this Agreement. In connection with such financing, correct Lessor made certain representations, warranties and complete copies, as of the date hereof, of covenants set forth in that certain (i) each fully executed Equity Commitment Letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of September 14, 2010 (the financing provided for therein being collectively referred as amended, restated, supplemented or otherwise modified from time to as time, the “Equity Financing2009 Note Purchase Agreement”) ), a copy of which has been provided to and reviewed by Lessee, (ii) a fully executed commitment letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of July 13, 2010 (together with all exhibitsas amended, schedulesrestated, and annexes thereto) and fee letter supplemented or otherwise modified from the financial institutions identified thereintime to time, the “Debt Financing Commitment Letter2010 Note Purchase Agreement” and, together with the Equity Commitment Letters2009 Note Purchase Agreement, the “Financing Commitment LettersNote Purchase Agreements”), a copy of which has been provided to and reviewed by Lessee and (iii) to provide, on the terms Second Amended and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter Restated Credit Agreement entered into in connection with the Debt Financingby Lessor and dated as of June 28, may have been redacted to the extent2013 (as amended, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amendedrestated, amended and restated restated, supplemented or modifiedotherwise modified from time to time, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, the “Credit Agreement” and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance together with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableNote Purchase Agreements, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the “Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountAgreements”), assuming a copy of which has been provided to and reviewed by Lessee. Lessee hereby covenants and agrees with Lessor that, during the satisfaction term of the conditions 2009 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.02(aSections 9.08 (Material Project Documents) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub that Lessee is a party theretoto any Material Project Documents, as defined in the 2009 Note Purchase Agreement), 10.04 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As 10.17 (Regulation) of the date hereof2009 Note Purchase Agreement. Lessee hereby covenants and agrees with Lessor that, during the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver term of the conditions 2010 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, Sections 9.8 (Material Project Documents) (to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe extent that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor Lessee is a party that would adversely affect to any Material Project Documents, as defined in the availability 2010 Note Purchase Agreement), 10.4 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and 10.17 (Regulation) of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing2010 Note Purchase Agreement.
Appears in 1 contract
Samples: Lease Agreement (InfraREIT, Inc.)
Financing. Parent has delivered to Attached hereto as Section 5.10 of the Company true, correct Disclosure Letter sets forth a true and complete copies, as copy of the date hereof, of (i) each fully an executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed debt commitment letter (of even date herewith, together with all any related term sheets, exhibits, schedules, annexes and annexes thereto) and fee letter from supplements (as amended, restated, supplemented or otherwise modified to the financial institutions identified thereinextent not prohibited hereunder, the “Debt Financing Commitment Letter” and”) pursuant to which the agents, arrangers, managers, lenders and other entities party thereto (excluding Buyer), including the parties to any joinder agreements joining such parties to the Debt Commitment Letter or parties (excluding Buyer) to the definitive agreements executed in connection with the Financing (together with the Equity Commitment Letterstheir respective affiliates and their respective affiliates’ officers, directors, employees, controlling persons, agents and representatives and their respective successors and assigns, collectively, the “Financing Commitment LettersLenders”) ), and subject to provide, on the terms and subject only conditions of which, have committed to provide the conditions expressly stated therein, Buyer with debt financing in the aggregate amounts set forth described therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by of which may be used to consummate the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement Contemplated Transactions (the “Required AmountFinancing”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing The Debt Commitment Letter is enforceable against Parenta legal, Merger Sub (to valid and binding obligation of the extent Parent or Merger Sub is a party thereto) Buyer and, to the knowledge of Parentthe Buyer, such the other Persons party thereto parties thereto, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally Insolvency and by general principles of equityEquity Exceptions. As of the date hereof, the Financing Debt Commitment Letters are Letter is in full force and effect effect, and assuming has not been withdrawn, rescinded or terminated or otherwise amended or modified in any respect, and no such amendment or modification is contemplated (except in connection with any amendments or modifications solely to effectuate any “market flex” terms contained in the satisfaction or waiver Debt Commitment Letter provided as of the date hereof, which such amendment or modification would not delay, prevent, or make less likely the consummation of the transactions contemplated by the Debt Commitment Letter). As of the date hereof, the Buyer is not in breach of any of the terms or conditions set forth in Section 7.01 the Debt Commitment Letter, and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub the Buyer or, to the knowledge Knowledge of Parentthe Buyer, any other parties theretoPerson under the Debt Commitment Letter or a failure to satisfy any condition precedent set forth therein. As of the date hereof, under and assuming the accuracy of the representations and warranties set forth in Article IV and compliance by the Sellers with their covenants herein, the Buyer has no reason to believe that (A) any of the Financing Commitment Letters. Assuming the satisfaction assumptions or any of the conditions statements set forth in Section 7.01 and Section 7.02 on the Closing Date, Debt Commitment Letter are inaccurate as of the date hereof, Parent (B) any of the conditions in the Debt Commitment Letter will not be satisfied on a timely basis or (C) the Financing will not be available on a timely basis in order to consummate the Contemplated Transactions at Closing. As of the date hereof, no Lender has notified the Buyer of its intention to terminate the Debt Commitment Letter or not to provide the Financing. The aggregate proceeds from the Financing will be sufficient (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) provided under the Debt Commitment Letter), together with Buyer’s cash on hand, to enable Buyer to consummate the Contemplated Transactions, including payment by Buyer of the Estimated Cash Purchase Price at the Closing, any fees and expenses of or payable by the Buyer (or, following the Closing, the Sold Companies or Sold Subsidiaries) and any related repayment or refinancing of Indebtedness of the Sold Companies or Sold Subsidiaries, and to pay all amounts payable by the Buyer at the Closing and to perform its obligations hereunder following the Closing. As of the date hereof, the Buyer has paid (or caused to be paid) in full any and all commitment or other fees required by the Debt Commitment Letter that are due and payable as of the date hereof. The Buyer will pay (or cause to be paid), after the date hereof, all such commitments and fees as and when they become due and payable. There are no side letters, understandings or other arrangements or Contracts relating to the Financing to which the Buyer or any of its Affiliates is a party, except as set forth in the Debt Commitment Letter (none of which would, individually or in the aggregate, adversely affect the amount, conditionality, availability or termination of the Financing). The Buyer has provided to the Company a true and complete executed copy of the fee letter dated as of the date hereof (the “Debt Fee Letter”) relating to the Debt Commitment Letter, with only the fee amounts, economic “market flex” provisions and other economic terms redacted from the Debt Fee Letter so long as no redaction covers terms that would, individually or in the aggregate, adversely affect the amount, conditionality, availability or termination of the Financing). There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing or the conditions precedent thereto, other than as explicitly set forth in the Debt Commitment Letter (the “Disclosed Conditions”). No Person has any right to impose, and no Lender, or the Buyer has any obligation to accept, any condition precedent to such funding other than the Disclosed Conditions. No Person (other than the Buyer) has any right to impose, and no Lender or the Buyer has any obligation to accept, any reduction to the aggregate amount available under the Debt Commitment Letter on the Closing Date (nor any term (including any flex or original issue discount term) or any condition which would have the effect of reducing the aggregate amount available under the Debt Commitment Letter on the Closing Date, in each case, below the amount required to enable the Buyer to consummate the Contemplated Transactions). The Buyer does not have any reason to believe that it will be unable to satisfy on a timely basis any conditions to the funding of the full amount under of the Financing, or that the Financing Commitment Letters will not be available to Parent or Merger Sub the Buyer on the Closing Date. As For the avoidance of doubt, it is not a condition to the Closing under this Agreement, nor to the consummation of the date hereofContemplated Transactions, for the Equity Commitment Letter contains all of Buyer to obtain the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingalternative financing.
Appears in 1 contract
Financing. Parent Lessee acknowledges that Lessor has delivered to advised Lessee that the Company trueXxxxxxx Transmission Loop Assets and this Agreement are security for the financings described below. In connection with such financings, correct SDTS made certain representations, warranties and complete copies, as of the date hereof, of covenants set forth in that certain (i) each fully executed Equity Commitment Letter Amended and Restated Note Purchase Agreement entered into by SDTS and dated as of September 14, 2010 (the financing provided for therein being collectively referred as amended, restated, supplemented or otherwise modified from time to as time, the “Equity Financing2009 Note Purchase Agreement”) ), a copy of which has been provided to and reviewed by Lessee, (ii) a fully executed commitment letter Amended and Restated Note Purchase Agreement XXXXXXX TRANSMISSION LOOP LEASE AGREEMENT entered into by SDTS and dated as of July 13, 2010 (together with all exhibitsas amended, schedulesrestated, and annexes thereto) and fee letter supplemented or otherwise modified from the financial institutions identified thereintime to time, the “Debt Financing Commitment Letter2010 Note Purchase Agreement” and, together with the Equity Commitment Letters2009 Note Purchase Agreement, the “Financing Commitment LettersNote Purchase Agreements”), a copy of which has been provided to and reviewed by Lessee and (iii) to provide, on the terms Second Amended and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter Restated Credit Agreement entered into in connection with the Debt Financingby SDTS and dated as of June 28, may have been redacted to the extent2013 (as amended, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amendedrestated, amended and restated restated, supplemented or modifiedotherwise modified from time to time, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, the “Credit Agreement” and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance together with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicableNote Purchase Agreements, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the “Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountAgreements”), assuming a copy of which has been provided to and reviewed by Lessee. Lessee hereby covenants and agrees with Lessor that, during the satisfaction term of the conditions 2009 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.02(aSections 9.08 (Material Project Documents) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub that Lessee is a party theretoto any Material Project Documents, as defined in the 2009 Note Purchase Agreement), 10.04 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As 10.17 (Regulation) of the date hereof2009 Note Purchase Agreement. Lessee hereby covenants and agrees with Lessor that, during the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver term of the conditions 2010 Note Purchase Agreement, Lessee will comply with the covenants set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, Sections 9.8 (Material Project Documents) (to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe extent that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor Lessee is a party that would adversely affect to any Material Project Documents, as defined in the availability 2010 Note Purchase Agreement), 10.4 (Terrorism Sanctions Regulations), 10.10 (Sale of Assets, Etc.), 10.11 (Sale or Discount of Receivables), 10.12 (Amendments to Organizational Documents), 10.16 (Project Documents) and 10.17 (Regulation) of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing2010 Note Purchase Agreement.
Appears in 1 contract
Samples: Lease Agreement (InfraREIT, Inc.)
Financing. Parent has delivered to the Company true, correct (i) true and complete copiescopies of the commitment letter (as the same may be amended in accordance with Section 6.13(a)), dated as of the date hereof, between Parent and each of (i) each fully executed Equity Commitment Letter Banc of America Securities LLC, Banc of America Bridge LLC, Bank of America, N.A. and Xxxxxxx Sachs Credit Partners L.P. (the “Debt Financing Commitment”), pursuant to which the lenders party thereto have agreed, subject to the terms and conditions set forth therein, to provide or cause to be provided the debt amounts set forth therein for the purposes of financing provided for therein being collectively referred to as the transactions contemplated by this Agreement and related fees and expenses (the “Equity Debt Financing”) and (ii) a fully executed true and complete copies of the equity commitment letter letters, dated as of the date hereof, between Parent and each of Blackstone Capital Partners V L.P., Xxxxxxx Xxxxx Investments Ltd., KKR 2006 Fund L.P. and TPG Partners V, L.P. (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified thereincollectively, the “Debt Equity Financing Commitment LetterCommitments” and, and together with the Equity Commitment LettersDebt Financing Commitment, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich each of the investor parties thereto have committed, on subject to the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts , to invest the amount set forth therein (the “Equity Financing” and pricing termstogether with the Debt Financing, including terms the “Financing”). None of the “market flex” and other commercially sensitive informationFinancing Commitments has been amended or modified prior to the date of this Agreement, no such amendment or modification is contemplated except as permitted by Section 6.13(a) and, as of the date of the Agreement, the respective commitments contained in the fee letter entered into Financing Commitments have not been withdrawn or rescinded in any material respect. Parent has fully paid any and all commitment fees or other fees in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub are payable on or prior to the Closing Date in connection with the consummation date hereof and, as of the transactions contemplated by date of this Agreement (Agreement, the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Debt Financing Commitment Letter is in full force and effect and is the valid, binding and enforceable against Parent, Merger Sub (to the extent obligation of Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such each other Persons party thereto so long as it remains in accordance with its termseffect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, except other than as enforcement may be limited set forth in or contemplated by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equitythe Financing Commitments. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 Commitments, and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any has no reason to believe that it will be unable to satisfy any of the full amount conditions to the Financing contemplated by the Financing Commitments (subject to the Company complying with its obligations hereunder and assuming that there will not be a Company Material Adverse Effect). After giving effect to the amounts expected to be funded under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereofCommitments, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to assuming compliance by the Company on or prior to the date hereof. Each Equity Commitment Letter provideswith its obligations hereunder, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation will have at the Closing funds sufficient, together with available cash of the Company, to consummate the Merger and pay the Aggregate aggregate Per Share Merger Consideration is not conditioned on (and any repayment or refinancing of debt contemplated by the availability Financing Commitments) and any other amounts required to be paid in connection with the consummation of Debt Financingthe transactions contemplated hereby, and to pay all related fees and expenses.
Appears in 1 contract
Financing. Parent Merger Sub has delivered to received and accepted (a) a commitment letter and related fee letters from BMO Xxxxxx Bank N.A. and BMO Capital Markets Corp. (collectively, the Company true“First Lien Lender”), correct and complete copies, dated as of the date hereofhereof (together, the “First Lien Debt Commitment Letter”), a true and complete copy of (i) each fully executed Equity Commitment Letter which has been provided to the Seller Board, pursuant to which the First Lien Lender has committed, subject to the terms and conditions set forth therein, to provide $130,000,000 of debt financing (the financing provided for therein being collectively referred to as the “Equity First Lien Debt Financing”) and (iib) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and related fee letter from Babson Capital Management, LLC (the financial institutions identified therein“Second Lien Lender” and, together with the First Lien Lender, each, a “Lender” and collectively, the “Debt Financing Lenders”), dated as of the date hereof (together, the “Second Lien Commitment Letter” and, together with the Equity First Lien Commitment LettersLetter, the “Financing Debt Commitment Letters”) ), a true and complete copy of which has been provided to provideSeller, on pursuant to which the Second Lien Lender has committed, subject to the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms to provide $40,000,000 of debt financing (the “market flexSecond Lien Debt Financing” and other commercially sensitive informationand, in the fee letter entered into in connection together with the First Lien Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicablecollectively, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the “Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountFinancing”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Debt Commitment Letters are in full force and effect and assuming the satisfaction has not been withdrawn or waiver terminated or otherwise amended or modified in any respect and, as of the conditions date hereof, to the knowledge of Merger Sub, no such withdrawal, termination, amendment or modification is contemplated by any Lender. The Debt Commitment Letters, in the forms so delivered, are legal, valid and binding obligations of Merger Sub, and to the knowledge of Merger Sub, the other parties thereto (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). Except as expressly set forth in Section 7.01 the Debt Commitment Letters, there are no conditions precedent to the obligation of any Lender to provide the Debt Financing or any contingencies that would permit any Lender to reduce the total amount of the Debt Financing. There are no side letters or other agreements, contracts or arrangements (except for the Debt Commitment Letters and Section 7.02 on any related engagement letters) relating to the Closing Datefunding or investing, Parent has as applicable, of the full amount of the Debt Financing or otherwise affecting the availability of the Debt Financing. As of the date hereof, (a) no reason to believe that any 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 Merger Sub orunder any term or condition of the Debt Commitment Letters and (b) Merger Sub is not aware of any fact, to the knowledge of Parent, any event or other parties thereto, under occurrence that makes any of the representations or warranties of Merger Sub in the Debt Commitment Letters inaccurate. Assuming (i) the Debt Financing is funded in accordance with the Debt Commitment Letters. Assuming , and (ii) at or prior to Closing, Parent receives gross proceeds of at least $30 million from the satisfaction of proposed Equity Offering, the conditions set forth in Section 7.01 and Section 7.02 Financing will provide Parent with cash proceeds on the Closing DateDate in an amount, as together with Parent’s cash on hand, sufficient to consummate the transactions contemplated by this Agreement on the terms contemplated hereby, including the payment of all required amounts pursuant to this Agreement. Merger Sub has paid in full any and all commitment fees or other fees or expenses required to be paid pursuant to the terms of the Debt Commitment Letters on or before the date hereofof this Agreement, Parent does not have and Merger Sub will pay any and all such fees as they become due. Merger Sub has no reason to believe that the full amount under conditions to the Financing funding contemplated by the Debt Commitment Letters will not be satisfied on or before the Closing or that the aggregate proceeds contemplated by the Debt Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (FinTech Acquisition Corp)
Financing. Parent (a) Buyer affirms that it is not a condition to the Closing or to any of its other obligations under this Agreement that Buyer obtain financing for, or related to, any of the transactions contemplated hereby. Buyer has delivered to the Company true, correct Seller true and complete copies, as fully executed copies of the date hereof, of (i) each fully executed Equity Commitment Letter Letters to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together ), the proceeds which are sufficient to provide Buyer with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) funds necessary to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts make all payments required to be paid in connection with made by it at the Merger and the other transactions contemplated herebyClosing hereunder, including payment of the Aggregate Merger ConsiderationPurchase Price and any damages pursuant to Section 9.13(c) (collectively, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing The Equity Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason not subject to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder thereunder, other than as set forth therein. The Equity Commitment Letters are valid and binding on Buyer and, to make Buyer’s knowledge, each other party thereto, and are in full force and effect as of the date hereof, and enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally. There are no side letters or other written agreements, contracts or arrangements to which Buyer or any of its Affiliates is a party which are related to the funding or investing, as applicable, of the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of contemplated by the Equity Financing Commitment Letters to be funded on the Closing Date, Date other than as expressly set forth in the Equity Commitment Letter provided to the Company on Letters. The Equity Commitment Letters have not been amended or modified prior to the date hereof. Each , to Buyer’s knowledge, no such amendment or modification is contemplated or pending, and the commitments contained in the Equity Commitment Letter providesLetters have not been withdrawn, terminated or rescinded in any respect, and will continue to provideBuyer’s knowledge, no such withdrawal, termination or rescission is contemplated. All commitments and other fees required to be paid under the Equity Commitment Letters prior to the date hereof have been paid, and assuming the accuracy of the representations and warranties of Seller in Article III, Buyer is unaware of any fact or occurrence existing on the date hereof that would cause the Company is a third party beneficiary thereof as Equity Commitment Letters to be ineffective. Assuming no breach or default by Seller under this Agreement and the satisfaction of the conditions set forth therein. Parent in Sections 5.01 and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration 5.03, Buyer is not conditioned aware of the existence of any fact or event as of the date of this Agreement that would cause the conditions to funding the amount of the Equity Financing contemplated by the Equity Commitment Letters to be funded on the availability of Debt FinancingClosing Date not to be satisfied.
Appears in 1 contract
Samples: Purchase Agreement (Allscripts Healthcare Solutions, Inc.)
Financing. Parent has delivered provided to the Company true, correct true and complete copies, as of the date hereof, copies of (i) each the fully executed Equity Commitment Letter commitment letter, dated as of September 28, 2009, between Parent and each of Xxxxx Fargo Foothill LLC and Capital Source Bank (the financing provided for “Debt Financing Commitments”), pursuant to which each of Xxxxx Fargo Foothill LLC and Capital Source Bank has agreed to lend the amounts set forth therein being collectively referred on the terms and subject to as the conditions set forth therein (the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement, and (ii) (A) the fully executed equity and debt commitment letter, dated as of September 28, 2009, between Parent and STG III, L.P. and STG III-A, L.P. (the “STG Equity FinancingCommitment”) and (iiB) a the fully executed equity and debt commitment letter letter, dated as of July 7, 2009, between Parent and Xxxxxxx Associates, L.P. and Xxxxxxx International, L.P. (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment LetterXxxxxxx Equity Commitment” and, together with the STG Equity Commitment LettersCommitment, the “Equity Financing Commitments” and together with the Debt Financing Commitments, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich each of XXX XXX, X.X., XXX XXX-X, L.P., Xxxxxxx Associates, L.P. and Xxxxxxx International, L.P. has committed to invest the amount set forth therein on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flexEquity Financing” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereofSeptember 24, 2009, none of the Financing Commitment Letters Commitments has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will respective commitments contained in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid Financing Commitments have not been withdrawn or rescinded in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Daterespect. Each The Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters Commitments are in full force and effect and assuming constitute the satisfaction or waiver legal, valid and binding obligations of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge each of Parent, any Merger Subsidiary and the other parties theretothereto (except as such enforceability may be limited by applicable bankruptcy, under any reorganization, moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting generally the enforcement of, creditors’ rights and remedies or by other equitable principles of the Financing Commitment Lettersgeneral application (regardless of whether such enforceability is considered in a proceeding in equity or at law)). Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the There are no conditions precedent and or other conditions contingencies related to the obligations funding of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing DateFinancing, other than as expressly set forth in the Equity Commitment Letter provided Financing Commitments, and Parent has no reason to believe that it will not be able to satisfy any term or condition of closing of the Financing that is required to be satisfied as a condition to the Financing, or that the Financing will not be made available to Parent on the Closing Date (assuming in each case compliance by the Company on or prior with its covenants hereunder and the continuing accuracy of the Company’s representations and warranties hereunder). Subject to the date hereof. Each Equity Commitment Letter providesterms and conditions of the Financing Commitments, and will continue to provide, that the aggregate proceeds of the Financings together with the Company Cash Deposit is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation an amount sufficient to consummate the Merger upon the terms contemplated by this Agreement and pay the Aggregate all related fees and expenses of Parent, Merger Consideration is not conditioned on the availability of Debt FinancingSubsidiary and their respective Representatives pursuant to this Agreement.”
Appears in 1 contract
Financing. Parent has delivered to the Company true, complete and correct copies of (i) the executed equity commitment letter from STG VII, L.P., a Delaware limited partnership, STG VII-A, L.P., a Delaware limited partnership, STG VII Executive Fund, L.P., a Delaware limited partnership, and complete copiesSTG AV, L.P., a Delaware limited partnership (collectively, the “Sponsors”), dated as of the date hereofof this Agreement, pursuant to which, and upon the terms and subject to conditions of which, the Sponsors have agreed to provide equity financing (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) to Parent in connection with the consummation of the Transactions (the “Equity Commitment Letter”) and that provides that the Company is a third-party beneficiary thereof, and (ii) a fully an executed commitment letter (together with all term sheets and other exhibits, schedulesannexes and schedules attached thereto, and annexes theretothe “Debt Commitment Letter”) and corresponding customarily redacted fee letter letters (which may be redacted to omit the fee amounts and any “market flex” provisions so long as no redactions cover terms that individually or in the aggregate would adversely affect the conditionality, availability or termination of the Debt Financing) from the financial institutions identified therein, therein (the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment LettersLenders”) to provide, on upon the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flexDebt Financing Commitments,” and other commercially sensitive informationas each may be amended or replaced from time to time to the extent permitted by Section 5.07(a) and, in the fee letter entered into in connection together with the Equity Commitment Letter, the “Financing Commitments”) for the purpose of funding the Transactions (being collectively referred to as the “Debt Financing”, may have been redacted and together with the Equity Financing, collectively referred to as the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereof, none Each of the Financing Commitment Letters Commitments has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waivedduly executed by Pxxxxx, and no such withdrawalto Parent’s knowledge, terminationeach other party thereto, repudiationand is a legal, rescission, amendment, amendment valid and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate binding obligation of Parent, and to the knowledge of Parent, there is no condition existing that would require any such withdrawaleach other party thereto, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except subject to the extent any such amendment is not prohibited under this Agreement. Assuming the Bankruptcy and Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityException. As of the date hereofof this Agreement, each of the Financing Commitment Letters are Commitments is in full force and effect effect, and assuming the satisfaction or waiver none of the Financing Commitments has been withdrawn, rescinded or terminated (and to Parent’s knowledge no such withdrawal, rescission or termination is presently contemplated) or otherwise amended or modified in any respect, and, to Parent’s knowledge, no such amendment or modification is contemplated (except in connection with any amendments or modifications to add commitment parties thereunder in accordance with the terms thereof or effectuate any “market flex” terms contained in the fee letters that individually or in the aggregate would not adversely affect the conditionality or availability of the Debt Financing). As of the date of this Agreement, Parent is not in breach of any of the terms or conditions set forth in Section 7.01 any of the Financing Commitments, and Section 7.02 on as of the Closing Datedate of this Agreement, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach, default or breach failure to satisfy any condition precedent set forth therein on the part of Parent under the Financing Commitments, or Merger Sub or, (to the knowledge of Parent, ) on the part of any other parties theretoparty under the Financing Commitments. As of the date of this Agreement, neither any Sponsor nor any Lender has notified Parent in writing of its intention to terminate, withdraw or rescind all or any portion of the Financing Commitments or not to provide the Financing. Assuming the Financing is funded in accordance with the Financing Commitments, the aggregate net proceeds from the Financing when funded in accordance with the Financing Commitments are sufficient to fund all of the amounts required to be provided by Parent or Merger Sub for the consummation of the Transactions and are sufficient for the satisfaction when due of all of the obligations of Parent and Merger Sub under this Agreement, including the payment of the Aggregate Merger Consideration and the payment of all costs and expenses of the Transactions (including any obligations of the Surviving Corporation and the Company Subsidiaries) that become due or payable on the Closing Date by the Surviving Corporation or any Company Subsidiary in connection with, or as a result of, the Transactions and any repayment or refinancing of Indebtedness required in connection therewith or contemplated by any of the Financing Commitments (collectively, the “Financing Uses”). As of the date of this Agreement, Pxxxxx has paid in full any and all commitment or other fees required by the Financing Commitments that are due as of the date of this Agreement, and will pay, after the date of this Agreement, all such fees as they become due and payable in accordance with the terms of the Equity Commitment LettersLetter and the Debt Commitment Letter. Assuming There are no conditions precedent or contingencies to the obligations of the parties under the Financing Commitments (including pursuant to any “flex” provisions in the related fee letter or otherwise) to make the full amount of the Financing available to Parent on the terms therein except as expressly set forth in the unredacted portion of the Financing Commitments; provided that if any portion of the Debt Financing is funded into an escrow or similar arrangement prior to the Effective Time, the parties hereto acknowledge and agree that the inclusion in any such arrangement of an Escrow Release Condition will not constitute a breach of this Agreement. There are no side letters or other agreements, understandings, contracts or arrangements (written, oral or otherwise) related to the Financing (other than the Financing Commitments and related fee letters). Subject to the Company’s compliance with this Agreement and the satisfaction of the conditions set forth in Section 7.01 6.01 and Section 7.02 6.02 (other than those conditions that by their terms are only capable of being satisfied on the Closing Date, but subject to the satisfaction of such conditions), as of the date hereofof this Agreement, Parent does not have any has no reason to believe that it will be unable to satisfy on a timely basis any conditions to the funding of the full amount under of the Financing, or that the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As Parent acknowledges and agrees that it is not a condition to the Closing or to any of its other obligations under this Agreement that Parent or the Company or any of their respective Subsidiaries obtain financing for or related to any of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingTransactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Avid Technology, Inc.)
Financing. Parent has delivered to the Company true, correct complete and complete copiesfully executed copies of commitment letters from Deutsche Bank A.G. New York Branch, Deutsche Bank A.G. Cayman Islands Branch, Deutsche Bank Securities Inc. and Mxxxxx Sxxxxxx Senior Funding, Inc., together with the executed fee letter related thereto of even date herewith (which such fee letter may be redacted so long as no redaction covers terms that would adversely affect the aggregate amount, conditionality, availability or termination of the date hereof, of (i) each fully executed Equity Commitment Letter (the debt financing provided for therein being collectively referred to as the “Equity Financing”contemplated therein) and (ii) a fully executed commitment letter (together with all any related exhibits, schedules, annexes, supplements, term sheets and annexes thereto) and fee letter from other agreements, which provide such lenders’ respective commitments to provide Parent with debt financing in connection with the financial institutions identified thereintransactions contemplated hereby in the amount set forth therein (collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide(such debt financing, on the terms “Financing”). Each of the Commitment Letters is in full force and subject only effect and is a valid and binding obligation of Parent and, to the conditions expressly stated thereinknowledge of Parent, debt financing the other parties thereto and enforceable against the parties thereto in the amounts set forth therein; provided that fee amounts and pricing accordance with their terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted subject to the extent, in each case, they are Permissible Redacted TermsEnforceability Limitations. As of the date hereof, none of the Financing Commitment Letters has have been amended or modified, and the respective commitments contained in the Commitment Letters have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated rescinded or modified, no terms thereunder have been waived, otherwise modified (and no such withdrawal, terminationrescission or modification is contemplated). As of the date hereof, repudiation, rescission, amendment, amendment and restatement, modification there are no side letters or waiver has occurred, and, other arrangements relating to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing Commitment Letters that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except reasonably be expected to affect the extent any such amendment is not prohibited under availability of the funding in full of the Financing. As of the date of this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters , Parent has fully paid, or caused to be fully paid, any and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, all commitment fees or other fees that have been incurred and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub are due and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub Commitment Letters on or prior to the Closing Date in connection with the consummation date of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityAgreement. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a material default or breach on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under any term or condition of the Commitment Letters, or otherwise result in any portion of the Financing Commitment Letterscontemplated thereby to be unavailable. Assuming There are no conditions precedent or other contingencies related to the satisfaction funding of the conditions full amount of the Financing, other than as set forth in Section 7.01 and Section 7.02 on the Closing Date, as Commitment Letters in the form so delivered to the Company. As of the date hereofof this Agreement, Parent does not have any has no reason to believe that the full amount under any term or condition to the Financing set forth in the Commitment Letters will not be fully satisfied on a timely basis or that the Financing will not be available to Parent or Merger Sub on at the Closing DateClosing. As The aggregate proceeds of the date hereofFinancing, together with the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters cash or other agreements, arrangements sources of immediately available funds that Parent has or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or will have prior to the date hereof. Each Equity Commitment Letter providesClosing, and will continue are in an amount sufficient to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation enable it to consummate the Merger and the other transactions contemplated hereby, to refinance any indebtedness required to be refinanced in connection therewith and to pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingany related fees and expenses.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SS&C Technologies Holdings Inc)
Financing. Parent has (a) The Buyer Entities have delivered to the Company Sellers true, correct and complete copiescopies of (i) a duly executed preferred equity commitment letter, dated as of the date hereof, of among Buyer Parent and the Financing Sources party thereto (i) each fully executed including all exhibits, schedules, term sheets, amendments, supplements, modifications and annexes thereto, attached hereto as Exhibit J, as may be amended, modified or replaced in accordance with the terms hereof, collectively, the “Preferred Equity Commitment Letter (Letter” and the preferred equity financing provided for contemplated therein being collectively referred to as the “Preferred Equity Financing”) and (ii) a fully duly executed debt commitment letter letter, dated as of the date hereof, among Buyer and the Financing Sources party thereto (together with including all exhibits, schedules, term sheets, amendments, supplements, modifications and annexes thereto) and fee letter from , attached hereto as Exhibit J, as may be amended, modified or replaced in accordance with the financial institutions identified thereinterms hereof, collectively, the “Debt Financing Commitment Letter” and, together with the Preferred Equity Commitment LettersLetter, the “Financing Commitment Letters”) and any other agreements related thereto, pursuant to providewhich the Financing Sources party thereto have committed, on subject to the terms and subject only to the conditions expressly stated set forth therein, debt financing in to lend the amounts set forth therein; provided that therein to the Buyer Entities (together with any Alternate Debt Financing, the “Debt Financing” and together with the Preferred Equity Financing, the “Financing”) for the purpose of funding the transactions contemplated hereby. The Buyer Entities have also delivered to Sellers a true, correct and complete copy of any fee letter (which may be redacted in a customary manner solely with respect to the fee amounts and pricing (but not covenants or other terms), including terms none of which affects conditionality, enforceability, termination or aggregate principal amount of the “market flex” and other commercially sensitive information, in the fee letter entered into Financing) in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require Letter (any such withdrawalletter, termination, repudiation, rescission, amendment, amendment a “Fee Letter” and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance together with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Lettercollectively, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountFinancing Letters”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Evolent Health, Inc.)
Financing. Parent has delivered to the Company true, correct true and complete copies, as of the date hereof, copies of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (iia) a fully executed commitment letter dated on or about the date of this Agreement (together with all exhibits, schedulesannexes, schedules and annexes theretoterm sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.11, the “Equity Funding Letter”) from the Guarantors providing for an equity investment in Parent, subject to the terms and fee conditions therein, in cash in the aggregate amount set forth therein (the “Equity Financing”), (b) a fully executed commitment letter and Redacted Fee Letter dated on or about the date of this Agreement from the financial institutions identified thereintherein (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.11, collectively, the “Redbox Business Debt Financing Commitment Letter”), and (c) a fully executed commitment letter and Redacted Fee Letter dated on or about the date of this Agreement from the financial institutions identified therein (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.11, collectively, the “Other Company Businesses Debt Commitment Letter” and, together with the Equity Redbox Business Debt Commitment Letter, the “Debt Commitment Letters”) and, together with the Redbox Business Debt Commitment Letter and the Equity Funding Letter, the “Financing Commitment Letters”) ), providing, subject to provide, on the terms and subject only to the conditions expressly stated therein, for debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (being collectively referred to as the “market flexDebt Financing” and other commercially sensitive informationand, in the fee letter entered into in connection together with the Debt Equity Financing, may have been redacted collectively referred to as the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereofof this Agreement, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, no such amendment or modification is contemplated, and, to the knowledge Knowledge of Parent, there is none of the respective obligations and commitments contained in such letters have been withdrawn, terminated or rescinded in any respect and, to the Knowledge of Parent, no condition existing that would require any such withdrawal, terminationtermination or rescission is contemplated. Parent, repudiation, rescission, amendment, amendment Outerwall Merger Sub or Redbox Merger Sub has fully paid any and restatement, modification all commitment fees or waiver, except other fees in connection with the Financing Letters that are payable on or prior to the extent date of this Agreement and will continue to pay in full any such amendment is not prohibited under this Agreementamounts required to be paid pursuant to the terms of the Financing Letters as and when they become due and payable on or prior to the Closing Date. Assuming (i) the Equity Financing is funded in accordance with the Equity Commitment Letters Financing Letters, (ii) the accuracy in all material respects of the representations and warranties set forth in Section 3.8, Section 3.10(a), Section 3.11, Section 3.12(c) (as it relates to Section 5.1(c)), Section 3.14(a)(v) and Section 3.14(a)(viii), and (iii) the Debt Financing is funded performance in accordance with all material respects by the Debt Financing Commitment LetterCompany and its Subsidiaries of the covenants and agreements contained in Section 5.1(c), as applicableSection 5.1(f) and Section 5.1(g) of this Agreement, the net proceeds contemplated by the Equity Financing Letters (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) provided under the Debt Commitment Letters), together with any available cash of the Company and its Subsidiaries as of the net proceeds contemplated by the Debt Financing Commitment LetterClosing Date, will in the aggregate, aggregate be sufficient for Parent, Outerwall Merger Sub and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration (and any repayment or refinancing of debt contemplated by this Agreement, the Equity Funding Letter or the Debt Commitment Letters) and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment consummation of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing Transactions (including all amounts payable in respect of debt of the Company Stock Options and its Subsidiaries contemplated by Company Awards under this Agreement, ) and to pay any other amounts required to be paid all related fees and expenses payable by Parent or Merger Sub on or prior to the Closing Date them in connection with the consummation of the transactions contemplated by this Agreement Transactions (such amount collectively, the “Required Amount”). The Financing Letters are (x) legal, assuming the satisfaction valid and binding obligations of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Outerwall Merger Sub (to the extent Parent or and Redbox Merger Sub is a party thereto) Sub, as applicable, and, to the knowledge Knowledge of Parent, such each of the other Persons party thereto parties thereto, (y) enforceable in accordance with its termstheir respective terms against Parent, except Outerwall Merger Sub and Redbox Merger Sub, as enforcement may be limited by bankruptcyapplicable, insolvencyand, reorganization or similar Applicable Laws affecting creditors’ rights generally to the Knowledge of Parent, each of the other parties thereto, in each case subject to the Enforceability Exceptions and by general principles (z) as of equitythe date of this Agreement, in full force and effect. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent Parent, Outerwall Merger Sub or Redbox Merger Sub or, to the knowledge Knowledge of Parent, any other parties thereto, thereto under any of the Financing Equity Funding Letter or the Debt Commitment Letters. Assuming As of the date of this Agreement, assuming satisfaction or waiver of the conditions set forth in Section 7.01 to Parent’s, Outerwall Merger Sub’s and Section 7.02 on Redbox Merger Sub’s obligations to consummate the Closing DateOffer and the Mergers, as of the date hereofParent, Parent does Outerwall Merger Sub and Redbox Merger Sub do not have any reason to believe that the full amount under conditions precedent set forth in the Financing Commitment Letters will not be satisfied or that the Required Amount will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the The only conditions precedent and other conditions (including the market “flex” provisions) related to the obligations of the parties thereunder Guarantors to make fund the full amount of the Equity Financing available and the lenders to Parent on fund the terms thereinfull amount of the Debt Financing are those set forth in the Equity Funding Letter and the Debt Commitment Letters, respectively. As of the date hereofof this Agreement, there are no side letters or other agreements, Contracts or arrangements or understandings (except for the portions of the Redacted Fee Letter permitted to be redacted hereunder) to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability of the Equity Financing on the Closing Date, other than as expressly set forth contained in the Equity Commitment Letter provided Financing Letters delivered to the Company on or prior to the date hereof. Each Equity Commitment Letter providesof this Agreement that would (A) impair the enforceability of any of the Financing Letters, (B) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and will continue to provide, original issue discount contemplated by the Financing Letters on the date of this Agreement) such that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation aggregate amount of the Financing would be below the amount required to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on Required Amount, (C) impose new or additional conditions precedent to the availability Financing, (D) otherwise adversely modify any of Debt the conditions precedent to the Financing or (E) reasonably be expected to prevent, impair or delay the consummation of the Financing.
Appears in 1 contract
Financing. Parent has delivered to the Company true, correct true and complete copies, as of the date hereof, copies of (i) each fully executed Equity Commitment Letter the commitment letter, dated as of May 20, 2008, among Parent and Regions Bank and Regions Business Capital Corporation (the financing provided for “Senior Debt Financing Commitment”), pursuant to which Regions Bank has agreed to lend the amounts set forth therein being collectively referred to as (the “Equity Senior Debt Financing”) and for the purpose of funding the transactions contemplated by this Agreement, (ii) a fully executed the commitment letter letter, dated as of May 20, 2008, among Parent and Apollo Investment Corporation (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Mezzanine Debt Financing Commitment LetterCommitment” and, together with the Senior Debt Financing Commitment, the “Debt Financing Commitments”), pursuant to which Apollo Investment Corporation has agreed to lend the amounts set forth therein (the “Mezzanine Debt Financing” and, together with the Senior Debt Financing, the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement, and (iii) the equity commitment letter, dated as of May 22, 2008, between Parent and Xxxxxx Brothers Merchant Banking Partners IV L.P. (the “Investor”) (the “Equity Commitment LettersFinancing Commitment” and together with the Debt Financing Commitments, the “Financing Commitment LettersCommitments”) ), pursuant to provide, on which the terms and subject only Investor has committed to invest the conditions expressly stated therein, debt financing in the amounts amount set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flexEquity Financing” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay the Financing Commitments have not been amended or modified and the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityrespect. As of the date hereof, the Financing Commitment Letters Commitments in the forms delivered to the Company, are in full force and effect and assuming the satisfaction or waiver each of them is a legal, valid and binding obligation of the Parent and Merger Sub, as the case may be, subject to the respective terms and conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub orcontained therein and, to the knowledge of Parentthe Parent and Merger Sub, any the other parties thereto. As of the date of this Agreement, under any there are no conditions precedent or other contingencies, side agreements or other agreements or understandings related to the funding of the full amount of the Financing Commitment Letters. Assuming or the satisfaction of the conditions terms thereof, other than as set forth in Section 7.01 the Financing Commitments and Section 7.02 on any fee letters and other documents (including any side letters) executed in connection with such Financing Commitments, in each case in the forms delivered to the Company; provided that (i) amounts set forth in the fee letters associated with the Debt Financing Commitments and (ii) any item in any side letter dealing solely with post-Closing Date, as matters have been redacted. As of the date hereofof this Agreement, neither the Parent does not have nor Merger Sub has any reason to believe that the full amount under they will be unable to satisfy on a timely basis any term or condition to be satisfied by it contained in any of the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingCommitments.
Appears in 1 contract
Financing. Section 4.05 of the Parent has delivered to the Company true, correct Disclosure Schedule sets forth true and complete copies, as copies of the date hereof, of (i) each fully an executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed debt commitment letter and related term sheets (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, or the “Financing Commitment LettersCommitments”) from Xxxxxxx Xxxxx Bank USA, Bank of America, N.A., BofA Securities, Inc., PNC Bank, National Association and PNC Capital Markets LLC (the “Lenders”), pursuant to providewhich, on and subject to the terms and subject only conditions of which, the Lenders have committed to the conditions expressly stated therein, debt provide Parent and/or Merger Sub with financing in the amounts set forth described therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, of which may be sufficient for Parent, Merger Sub and the Surviving Corporation used to pay the amounts required to be paid in connection with consummate the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required AmountDebt Financing” or the “Financing”), assuming the satisfaction . As of the conditions set forth in Section 7.02(a) and Section 7.02(b) on date hereof, each of the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub Commitments is a party thereto) legal, valid and binding obligation of Parent and, to the knowledge Knowledge of Parent, such the other Persons party thereto parties thereto, enforceable in accordance with its terms, except as enforcement may be limited by subject to applicable bankruptcy, insolvency, reorganization or fraudulent conveyance, reorganization, moratorium and similar Applicable Laws of general applicability affecting creditors’ rights generally and by general principles of equity. As of the date hereof, each of the Financing Commitment Letters are Commitments is in full force and effect effect, and assuming the satisfaction or waiver none of the Financing Commitments has been withdrawn, rescinded or terminated or otherwise amended, supplemented or modified in any respect and no waiver has been granted thereunder, no such amendment, supplement, waiver or modification is contemplated, and, to the Knowledge of Parent, no withdrawal or rescission thereof is contemplated. As of the date hereof, neither Parent nor Merger Sub is in breach of any of the material terms or conditions set forth in Section 7.01 and Section 7.02 any of the Financing Commitments. As of the date hereof, there is no fact or occurrence existing on the Closing Date, Parent has no reason to believe that any event has occurred whichdate hereof that, with or without notice, lapse of time or both, would could (A) make any of the assumptions or would reasonably be expected any of the statements set forth in the Financing Commitments inaccurate, (B) result in any of the conditions in the Financing Commitments not being satisfied on a timely basis at or prior to the time that the Closing is required to occur pursuant to the terms of this Agreement, (C) constitute a default breach by Parent under the terms and conditions of the Debt Commitment Letter, (D) cause any of the Financing Commitments to be ineffective or breach (E) otherwise result in the Financing not being available on a timely basis at or prior to the part time that the Closing is required to occur pursuant to the terms of this Agreement in order to consummate the transactions contemplated by this Agreement. As of the date hereof, no Lender has notified Parent or Merger Sub orof its intention to terminate any Financing Commitment or not to provide the Financing. Assuming (1) the Financing is funded in accordance with its terms and conditions, (2) the Rollover Shares are transferred to Parent in connection with the Rollover Share Transfers and (3) the satisfaction of the conditions to the knowledge Company’s obligation to consummate the Merger set forth in Section 6.01 and Section 6.02 and the Company’s compliance with its obligations in Section 6.03, the Financing will, together with other funds available to Parent, provide Parent with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement and under the Debt Commitment Letter, including the payment of the Merger Consideration, the payment of any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation, any payments in respect of equity compensation obligations to be made in connection with the Merger, and for 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 Debt Commitment Letter (such amounts, collectively, the “Merger Amounts”). Parent or Merger Sub has paid in full any and all commitment or other parties theretofees required by any Financing Commitment that are due as of the date hereof, under and will pay, after the date hereof, all such commitments and fees as they become due. There are no side letters, understandings or other agreements, Contracts or arrangements of any kind relating to the Financing that could affect the availability, conditionality, enforceability or aggregate principal amount of the Financing contemplated by the Debt Commitment LettersLetter. As of the date hereof, Parent has provided the Company a complete copy of all fee letters (collectively, the “Fee Letter”) relating to the Debt Commitment Letter, subject to redactions solely of fee amounts, pricing caps, “market flex” and economic terms, none of which redacted provisions could affect the conditionality, enforceability, availability or aggregate principal amount of the Financing. There are no conditions precedent related to the funding of the full amount of the Financing or any contingencies that would permit the Lenders to reduce the total amount of the Financing (including any condition or other contingency relating to the amount or availability of the Financing pursuant to any “flex” provision), other than as explicitly set forth in the Financing Commitments. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on to the Closing DateCompany’s obligation to consummate the Merger, as of the date hereof, neither Parent does not have nor Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis any conditions to the funding of the full amount under of the Financing Commitment Letters at or prior to the date that the Closing is required to occur pursuant to the terms of this Agreement, that the Financing will not be available to Parent or Merger Sub on the date that the Closing Date. As is required to occur pursuant to the terms of this Agreement, or that any of the date hereofLenders will not perform its obligations thereunder. In no event shall the receipt or availability of any funds or financing (including, for the avoidance of doubt, the Equity Commitment Letter contains all Financing) by Parent, Merger Sub or any of the conditions precedent and their respective Affiliates or any other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters financing or other agreements, arrangements transactions be a condition to any of Parent’s or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingSub’s obligations under this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (International Speedway Corp)
Financing. Parent Buyer has delivered to the Company true, correct Seller true and complete copies, as copies of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed debt commitment letter from Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Banc of America Securities LLC and Bank of America, N.A. (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and”), together with dated December 10, 2007, and the Equity Commitment Lettersexecuted capital commitment letters from Bxxxxxx & Bxxxx Infrastructure Limited, BBIFNA AIV Two, LP, Bxxxxxx & Bxxxx Xxxxx Pty Ltd, Public Sector Pension Investment Board, and Stichting Pensioenfonds voor de Gezondheid, Geestelijke en Maatschappelijke Belangen (PGGM) (the “Financing Investor Commitment LettersLetter”) to provide), on the terms and subject only to the conditions expressly stated thereindated December 10, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms2007. As of the date hereofof this Agreement, none of the Financing Debt Commitment Letters has Letter and the Investor Commitment Letter and the commitments contained therein, in the form so delivered, (i) have not been in any manner withdrawn, terminated, repudiated, rescindedaltered, amended, amended and restated or modified, no terms thereunder have been waivedrescinded or revoked, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(aii) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming (iii) are legal, valid and binding obligations of Buyer and to the satisfaction or waiver Knowledge of Buyer, each of the other parties thereto. The Investor Commitment Letter provides that the parties to such Investor Commitment Letter are obligated to fund their commitments under such letter for the purpose of paying the Purchase Price in the event that either (a) Buyer agrees that the conditions set forth in Article 9 have been satisfied or waived, or (b) the Arbitrator delivers a Satisfied Conditions Decision pursuant to Article 10, or is deemed to have issued or delivered a Satisfied Conditions Decision in accordance with Section 7.01 10.1(a). The Investor Commitment Letter also provide that (i) (x) it cannot be withdrawn, rescinded or revoked or assigned (whether by operation of law, merger consolidation or otherwise; provided that Bxxxxxx & Bxxxx Infrastructure Limited may assign all or a portion of its rights and Section 7.02 on obligations under the Investor Commitment Letter to Affiliates it controls or to Bxxxxxx & Bxxxx Infrastructure Trust and Affiliates controlled by Bxxxxxx & Bxxxx Infrastructure Trust) prior to their term and cannot otherwise be altered, amended or modified in a manner adverse to Seller, Buyer or the Company or that would adversely impact the ability of any of them to consummate the transactions contemplated hereunder or would delay the Closing Date, Parent has no reason and (y) the parties thereto and the amounts they are committed to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will fund cannot be available to Parent or Merger Sub on the Closing Date. As of the date hereofchanged, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.each case
Appears in 1 contract
Samples: Purchase Agreement (Knight Inc.)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereof, fully executed copies of (i) a debt commitment letter dated the date hereof and addressed to Sub from Bank of America, N.A. and BofA Securities, Inc. pursuant to which Bank of America, N.A. has committed to provide, upon the terms and subject only to the conditions expressly set forth therein, debt financing in the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Debt Financing”) and each fully fee letter entered into by Parent or Sub or any of their respective Affiliates in connection therewith (such debt commitment letter and fee letters, together with all exhibits, schedules and annexes thereto, collectively, the “Debt Commitment Letters”); provided that fee amounts and other commercially sensitive terms, none of which could affect the conditionality, availability, amount, timing or termination of the Debt Financing, may have been redacted and (ii) executed equity commitment letters (the “Equity Commitment Letter Letters” and with the Debt Commitment Letters, the “Commitment Letters”) dated the date hereof and addressed to Parent, pursuant to which each Investor has committed, upon the terms and subject only to the conditions expressly set forth therein, to provide the equity financing described therein in connection with the transactions contemplated by this Agreement (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereof, none of the Financing Commitment Letters has have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated supplemented or otherwise modified, and no terms or commitments or other obligations thereunder have been waived, withdrawn, terminated, rescinded, repudiated, amended, supplemented or otherwise modified, and no such waiver, withdrawal, termination, rescission, repudiation, rescission, amendment, amendment supplement or modification is contemplated (and restatement, modification or waiver the Company has occurred, and, to the extent related to any Person that is not an Affiliate been designated as a third party beneficiary of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters as provided therein). Sub has fully paid any and all commitment fees or other fees incurred or payable in connection with the Financing and required to be paid on or prior to the date hereof. The proceeds of the Financing (both before and after giving effect to any “flex” provisions contained in the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter), will in the aggregate, aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation to to, pay the amounts required to be paid in connection with the aggregate Merger Consideration and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any all other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement or the Commitment Letters (including, without limitation, the repayment of indebtedness of the Company and the Company Subsidiaries contemplated by this Agreement and the payment of all fees, costs and expenses required to be paid by Parent or Sub at Closing in connection with the Transactions or the Commitment Letters) (the amount sufficient to make such payments, the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing The Commitment Letters are in full force and effect and assuming the satisfaction or waiver as of the conditions set forth date hereof, and the Commitment Letters constitute valid and binding obligations of Parent and Sub, the other parties thereto, enforceable against Parent and Sub and, to the knowledge of Parent and Sub, each other party thereto, in Section 7.01 accordance with their terms, subject to the Bankruptcy and Section 7.02 on Equity Exception. As of the Closing Datedate hereof, Parent has no reason to believe knowledge that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Neither Parent does not have nor Sub has any reason to believe that any of the conditions to the Financing will not be satisfied on a timely basis or that the full amount under of the Financing Commitment Letters necessary to fund the Required Amount will not be made available to Parent or Merger Sub on a timely basis in order to consummate the Closing DateMerger and the other transactions contemplated hereby. As of the date hereof, the Equity Commitment Letter contains all of the There are no conditions precedent and other conditions or contingencies to the obligations of the parties thereunder under the Commitment Letters (including pursuant to any “flex” provisions or otherwise) to make the full amount of the Equity Financing available to Parent on the Closing Date upon the terms thereinset forth therein except as expressly set forth in the Commitment Letters. As of the date hereof, there are no side letters or other agreements, Contracts or arrangements or understandings to which Parent or any Equity Investor of its Affiliates is a party related (directly or indirectly) to the funding or investing, as applicable, of the full amount of the Financing that would adversely could affect the availability conditionality, availability, amount, timing or termination of the Equity Debt Financing on the Closing Date, other than expressly as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth thereinLetters. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay obtaining of the Aggregate Merger Consideration Financing, or any Alternative Financing, is not conditioned on the availability of Debt Financinga condition to Closing.
Appears in 1 contract
Financing. Parent has delivered to the Company true, correct true and complete copiescopies of (a) a fully executed commitment letter dated on or about the date of this Agreement from the Financing Sources (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.14(b)), and (b) a fully executed fee letter (which may be redacted solely to omit the fee amounts and other economic terms and the “market flex” provisions thereof, none of which would adversely affect the amount, conditionality, availability or termination of the Financing contemplated thereby)(the “Redacted Fee Letter”) dated on or about the date hereofof this Agreement from the Financing Sources (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.14(b), collectively, the “Financing Letters”) providing, subject to the terms and conditions therein, for debt financing in the amounts set forth therein (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofof this Agreement, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there no such amendment or modification is contemplated, and, to the knowledge of Parent, none of the respective obligations and commitments contained in such letters have been withdrawn, terminated or rescinded in any respect and, to the knowledge of Parent, no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment termination or rescission is contemplated. Parent or Purchaser has fully provided for any and restatement, modification all commitment fees or waiver, except other fees in connection with the Financing Letters that are payable on or prior to the extent date of this Agreement and shall continue to provide in full for any such amendment is not prohibited under this Agreementamounts required to be paid pursuant to the terms of the Financing Letters as and when they become due and payable on or prior to the Closing Date. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the The net proceeds contemplated by the Equity Commitment Financing Letters (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) provided under the Financing Letters), together with any available cash of the Parent, the Company and their respective Subsidiaries as of the net proceeds contemplated by Closing Date (taking into account, with respect to any cash of the Debt Financing Commitment LetterAcquired Companies, the limitations set forth in clause (C) of the last sentence of Section 6.14(a)), will in the aggregate, aggregate be sufficient for Parent, Merger Sub Purchaser and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment consummation of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing Transactions (including all amounts payable in respect of debt of the Company Stock Options and its Subsidiaries contemplated by Company Awards under this Agreement, ) and to pay any other amounts required to be paid all related fees and expenses payable by Parent or Merger Sub on or prior to the Closing Date them in connection with the consummation of Transactions, including the transactions contemplated by this Agreement Financing (such amount collectively, the “Required Amount”). The Financing Letters are (x) legal, assuming the satisfaction valid and binding obligations of the conditions set forth in Section 7.02(a) Parent and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against ParentPurchaser, Merger Sub (to the extent Parent or Merger Sub is a party thereto) as applicable, and, to the knowledge of Parent, such each of the other Persons party thereto parties thereto, (y) enforceable in accordance with its termstheir respective terms against Parent and Purchaser, except as enforcement may be limited by bankruptcyapplicable, insolvencyand, reorganization or similar Applicable Laws affecting creditors’ rights generally to the knowledge of Parent, each of the other parties thereto, in each case subject to the Enforceability Exceptions and by general principles (z) as of equitythe date of this Agreement, in full force and effect. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub Purchaser or, to the knowledge of Parent, any other parties thereto, thereto under any the Financing Letters. As of the Financing Commitment Letters. Assuming the date of this Agreement, assuming satisfaction or waiver of the conditions set forth in Section 7.01 to Parent’s and Section 7.02 on Purchaser’s obligations to consummate the Closing Date, as of Offer and the date hereofMerger, Parent does and Purchaser do not have any reason to believe that the full amount under conditions precedent set forth in the Financing Commitment Letters will not be satisfied or that the Required Amount will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereofthis Agreement, there are no side letters or other agreements, Contracts or arrangements or understandings to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect related to the availability of the Equity Financing on the Closing Date, other than as expressly set forth contained in the Equity Commitment Letter provided Financing Letters delivered to the Company on or prior to the date hereof. Each Equity Commitment Letter providesof this Agreement that would (A) impair the enforceability of any of the Financing Letters, (B) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and will continue to provide, original issue discount contemplated by the Financing Letters on the date of this Agreement) such that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation aggregate amount of the Financing would be below the amount required to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on Required Amount, (C) impose new or additional conditions precedent to the availability Financing, (D) otherwise adversely modify any of Debt the conditions precedent to the Financing or (E) reasonably be expected to prevent, impair or delay the consummation of the Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Rightside Group, Ltd.)
Financing. (a) Parent has delivered to the Company a true, correct complete and fully executed copy of a commitment letter dated the date of this Agreement (including all exhibits, schedules and annexes thereto as in effect on the date of this Agreement) (as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement, the “Parent Commitment Letter”), from Xxxxxxx Xxxxx Bank USA (together with any other commitment parties or Affiliates thereof from time to time party to the Parent Commitment Letter, the “Lenders”) and true, complete copiesand fully executed copies of all associated fee letters dated the date of this Agreement (except that such copies of such fee letters may be redacted in a customary manner to remove fees, economic terms, “market flex” provisions and other customarily redacted provisions set forth therein so long as such redacted information does not contain terms relating to the conditionality or availability of the date hereofFinancing or the aggregate amount of the financing) (as they may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement, the “Fee Letters”), pursuant to which, and subject to the terms and conditions set forth therein, among other things, the Lenders party thereto have committed to Parent to provide Parent with debt financing in the amount set forth therein (i) each fully executed Equity the debt financing contemplated by the Parent Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereofof this Agreement, none of (x) the Financing Parent Commitment Letter and the Fee Letters has have not been amended, waived or modified, and (y) the commitments contained in the Parent Commitment Letter have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated modified or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to rescinded in any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equityrespect. As of the date hereofof this Agreement, except for the Parent Commitment Letter and, so long the provisions of the Fee Letters would not adversely affect the amount or availability of the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Fee Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreementscontracts, instruments or other commitments, obligations or arrangements (whether written or understandings oral) to which Parent or any Equity Investor of its Affiliates is a party that would adversely affect containing conditions precedent to the availability funding of the Equity Financing on full amount of the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Transportation Systems Holdings Inc.)
Financing. (a) As of the date of this Agreement, Parent has delivered provided to the Company true, correct and complete copies, dated as of the date hereofof this Agreement, of (i) each fully executed the Equity Commitment Letter from the Investors, pursuant to which the Investors have, severally (and not jointly) committed to provide, subject only to the financing provided for therein being collectively referred terms and conditions contained therein, funds equal to as the Required Amount (the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter the Debt Commitment Letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, Sources party thereto (together with the Equity Commitment LettersLetter, the “Financing Commitment Letters”) pursuant to which such Debt Financing Sources have committed to provide, on the terms and subject only to the terms and conditions expressly stated therein, the debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (the debt financing contemplated by the Debt Commitment Letters being collectively referred to as the “market flex” and other commercially sensitive informationDebt Financing”; and, in the fee letter entered into in connection together with the Debt Equity Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms“Financing”). As of the date hereofof this Agreement, none there are no other side letters or agreements to which Parent or Merger Sub is a party relating to the Financing, other than as expressly set forth in the Financing Letters. As of the date of this Agreement, (A) each Financing Commitment Letters Letter, in the form provided to the Company, (i) has not been withdrawnamended, supplemented, terminated, repudiated, rescinded, amended, amended and restated rescinded or modified, no terms thereunder have been waived, modified (and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver of any provision thereof has occurred, been granted) and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawalamendment, supplement, termination, repudiationrescission or modification is contemplated (other than to add lenders, rescissionlead arrangers, amendmentbookrunners, amendment syndication agents or other entities who had not executed the Debt Commitment Letters as of the date of this Agreement), and restatement(ii) is a legal, modification or waivervalid and binding obligation of Parent, except Merger Sub and, to the extent any such amendment knowledge of Parent, the Investors and the applicable Debt Financing Sources, is not prohibited under this Agreement. Assuming the Equity Financing in full force and effect, and is funded enforceable in accordance with the Equity Commitment Letters terms thereof against Parent, Merger Sub and, to the knowledge of Parent, the Investors and the applicable Debt Financing Sources, subject, in each case, the effect of any applicable bankruptcy, insolvency (including all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity), and (B) no event has occurred (and no event is funded reasonably expected to occur) which would reasonably be expected to result in accordance any breach of or constitute a default under (or an event which with notice or lapse of time or both would result in any breach of or constitute a default under) or reasonably be expected to result in a failure to satisfy a condition precedent, in each case, on the Debt part of Parent, Merger Sub or the Investors or would reasonably be expected to permit any party to such Financing Commitment Letter to terminate, or to not make the initial funding in an amount required to satisfy the Required Amount under such Financing Letter. As of the date of this Agreement, assuming the conditions set forth in Annex A and Article 7 have been satisfied (other than those conditions that by their terms are to be satisfied as of immediately prior to the Expiration Time or the Closing, as applicable, the net proceeds contemplated but subject to such conditions being able to be satisfied) or waived by the Equity Commitment LettersClosing, and Parent does not have any reason to believe that any of the net proceeds conditions to the Debt Financing will not be satisfied or that (subject to the satisfaction of such conditions) the full amount of the Debt Financing contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required Letters to be paid in connection with funded on or prior to the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, Closing Date will not be available to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
Appears in 1 contract
Financing. Parent (a) Lessee acknowledges that Lessor has delivered to advised Lessee that Lessor has obtained financing secured by, among other things, the Company trueCREZ Assets and this Agreement. In connection with such financing, correct Lessor made certain representations, warranties and complete copies, as of the date hereof, of covenants set forth in that certain (i) each fully executed Equity Commitment Letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of September 14, 2010 (the financing provided for therein being collectively referred as amended, restated, supplemented or otherwise modified from time to as time, the “Equity Financing2009 Note Purchase Agreement”) ), a copy of which has been provided to and reviewed by Lessee; (ii) a fully executed commitment letter Amended and Restated Note Purchase Agreement entered into by Lessor and dated as of July 13, 2010 (together with all exhibitsas amended, schedulesrestated, and annexes thereto) and fee letter supplemented or otherwise modified from the financial institutions identified thereintime to time, the “Debt Financing Commitment Letter” and2010 Note Purchase Agreement”), together with the Equity Commitment Lettersa copy of which has been provided to and reviewed by Lessee; (iii) Note Purchase Agreement entered into by Lessor dated as of December 3, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Financing Commitment Letters2015 Note Purchase Agreement”), a copy of which has been provided to and reviewed by Lessee; (iv) to provide, on the terms Third Amended and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter Restated Credit Agreement entered into in connection with the Debt Financingby Lessor and dated as of December 10, may have been redacted to the extent2014 (as amended, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amendedrestated, amended and restated restated, supplemented or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, otherwise modified from time to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicabletime, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this “2014 Credit Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction a copy of the conditions set forth in Section 7.02(awhich has been provided to and reviewed by Lessee; (v) Amended and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against ParentRestated Credit Agreement entered into by Lessor and dated as of December 3, Merger Sub 2015 (as amended, restated, amended and restated, supplemented or otherwise modified from time to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereoftime, the Financing Commitment Letters are in full force “2015 Credit Agreement”), a copy of which has been provided to and effect reviewed by Lessee; and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 (vi) Term Loan Credit Agreement entered into by Lessor and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, dated as of the date hereofJune 5, Parent does not have any reason 2017 (as amended, restated, amended and restated, supplemented or otherwise modified from time to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereoftime, the Equity Commitment Letter contains all “Term Loan Agreement”), a copy of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter has been provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financingreviewed by Lessee.
Appears in 1 contract
Financing. Parent has delivered to the Company true, correct and complete copies, as copies of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as the “Equity Financing”) and (ii) a fully executed commitment letter from Royal Bank of Canada, RBC Capital Markets, Bank of America, N.A. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (together with all exhibitstheir Affiliates, schedules, successors and annexes thereto) and fee letter from the financial institutions identified thereinassigns permitted thereunder, the “Debt Financing Commitment Letter” and, Providers”) together with any related fee letters (solely in the Equity Commitment Letterscase of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms contained therein redacted (collectively, the “Financing Commitment LettersLetter”) to providewhereby such financial institutions have committed, on upon the terms and subject only to the conditions expressly stated set forth therein, to provide debt financing in the amounts described therein. As of the date of this Agreement, the Commitment Letter has not been amended, supplemented or modified, and, to the Knowledge of Parent, the respective commitments contained in the Commitment Letter have not been withdrawn, terminated or rescinded in any respect, and, to the Knowledge of Parent, no amendment, termination or modification is contemplated, except as set forth therein; provided in the Commitment Letter (it being understood that fee amounts and pricing terms, including terms the exercise of the “market flex” and other commercially sensitive information, in provisions under the fee letter entered into in connection with shall not be deemed an amendment or modification). As of the Debt Financingdate of this Agreement, may have been redacted to the extentthere are no side letters or other agreements or contracts of any kind, in each case, they to which Parent or any of its Subsidiaries is a party, relating to the debt financing that reduces the amount of, or otherwise affects the conditionality or availability of, the Financing on the Closing Date, other than as expressly set forth in the Commitment Letter. There are Permissible Redacted Termsno conditions precedent or contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Commitment Letters. As The Commitment Letter, in the form so delivered, is in full force and effect as of the date hereofof this Agreement and is a legal, none valid and binding obligation of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, Parent and, to the extent related to any Person that is not an Affiliate Knowledge of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated herebyparties thereto, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, each case except as enforcement the enforceability thereof may be limited by bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium or similar Applicable Laws affecting laws relating to the enforcement or creditors’ rights generally and or by general principles of equity. As of the date hereofof this Agreement, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 under any term or Merger Sub orcondition of the Commitment Letter. As of the date of this Agreement (a) Parent is not aware of any fact or occurrence that makes any of the assumptions, to or the knowledge representations or warranties of Parent, in the Commitment Letter inaccurate in any other parties theretomaterial respect, under any of the Financing Commitment Letters. Assuming the satisfaction of (b) assuming the conditions set forth in Section 7.01 6.1 and Section 7.02 on the Closing Date, as of the date hereof6.3 have been satisfied, Parent does not have any has no reason to believe that any of the full amount under conditions to the Financing will fail to be satisfied on the Closing Date and (c) Parent has no reason to believe that any portion of the Financing to be made available on the Closing Date pursuant to the Commitment Letters Letter will not be made available to Parent or Merger Sub on the Closing Date. As of Parent has fully paid any and all commitment fees or other fees required by the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company be paid by it on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth thereinof this Agreement. Parent and Merger Sub acknowledge and agree expressly acknowledges that their obligation its ability to consummate the Merger and pay the Aggregate Merger Consideration obtain financing is not conditioned on the availability of Debt Financinga condition to its obligations under this Agreement.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company a true, complete and correct copy of the fully executed commitment letter, dated as of the date hereof, among Parent, Titan Private Holdings II, LLC, Delaware limited liability company and a wholly owned subsidiary of Parent (“Holdings”), Sankaty Credit Opportunities IV, L.P., Sankaty Middle Market Opportunities Fund, L.P. and GSO Capital Partners LP, including the term sheets attached thereto (the “Debt Financing Commitment”), pursuant to which the lenders party thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement (including funding of the Payment Fund) and related fees and expenses (such committed financing, together with, unless the context requires otherwise, any debt securities to be issued in lieu thereof, the “Debt Financing”). Parent has delivered to the Company true, complete and correct and complete copiescopies of the fully executed commitment letters, dated as of the date hereof, between each of Siris Partners II, L.P. and the other investors party thereto (i) each fully executed Equity Commitment Letter collectively, the “Sponsors”), on the one hand, and Parent, on the other hand (the financing provided for therein being collectively referred to as collectively, the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment LetterCommitments” and, together with the Equity Commitment LettersDebt Financing Commitment, the “Financing Commitment LettersCommitments”) ), pursuant to providewhich the investor parties thereto have committed, on subject to the terms and subject only to the conditions expressly stated set forth therein, debt financing to invest in Parent the cash amounts set forth therein; provided that fee amounts and pricing terms, including terms of therein (the “market flexEquity Financing” and other commercially sensitive informationand, in the fee letter entered into in connection together with the Debt Financing, may the “Financing”). None of the Financing Commitments have been redacted amended or modified prior to the extentdate of this Agreement, in each case, they are Permissible Redacted Terms. As and as of the date hereof, none of hereof no such amendment or modification is contemplated and the respective commitments contained in the Financing Commitment Letters has Commitments have not been withdrawn, terminated, repudiated, rescinded, amended, amended and restated withdrawn or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to rescinded in any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) respect and, to the knowledge of Parent, such no withdrawal or rescission is contemplated. Except for fee letters relating to fees with respect to the Debt Financing, as of the date hereof there are no side letters or other Persons party agreements, Contracts or arrangements related to the funding or investing, as applicable, of the Financing other than (i) the Interim Investors Agreement, dated as of the date hereof, between Parent and each of the Sponsors, a copy of which has been provided to the Company, and (ii) as expressly set forth in or expressly contemplated by the Financing Commitments delivered to the Company prior to the date hereof. Parent has fully paid or caused to be paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof, and will duly pay or cause to be paid in full when due all commitment fees or other fees in connection with the Financing Commitments that are payable after the date hereof, and, as of the date hereof, the Financing Commitments are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent, and, to the knowledge of Parent, each of the other parties thereto in accordance with its terms, except as enforcement may be limited by subject to bankruptcy, insolvency, reorganization or similar Applicable Laws fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and by general principles of equity. 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 delivered to the Company prior to the date hereof. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver accuracy of the conditions representations and warranties set forth in Section 7.01 and Section 7.02 on the Closing DateArticle 4, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, party thereto under any of the Financing Commitment LettersCommitments. Assuming Neither Parent nor Merger Subsidiary are, as of the date hereof, aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Financing Commitments inaccurate in any material respect or that would cause the commitments provided in the Financing Commitments to be terminated or ineffective or any of the conditions contained therein not to be met. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Section 4.05, the performance in all material respects by the Company of its obligations under this Agreement, and the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereofArticle 9, Parent does not have any has no reason to believe that any of the full amount under conditions to the Financing Commitment Letters contemplated by the Financing Commitments will not be available to satisfied. Assuming the Financing is funded in accordance with the Financing Commitment, the accuracy of the representations and warranties set forth in Section 4.05 and performance by the Company in all material respects of its obligations under this Agreement, Parent or and Merger Sub on Subsidiary will have at and after the Closing Date. As of funds sufficient to (i) pay the date hereofaggregate Merger Consideration, (ii) pay any and all fees and expenses required to be paid by Parent, Merger Subsidiary and the Equity Commitment Letter contains Surviving Corporation in connection with the Merger and the Financing, and (iii) satisfy all of the conditions precedent and other conditions to the payment obligations of Parent, Merger Subsidiary and the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingSurviving Corporation contemplated hereunder.
Appears in 1 contract
Financing. Parent TruGreen Holdings has delivered to Scotts complete, true and correct copies of: (i) the Company trueexecuted commitment letter, correct dated as of the date hereof by and complete copiesamong JPMorgan Chase Bank, N.A., X.X. Xxxxxx Securities LLC, Credit Suisse AG, Credit Suisse Securities (USA) LLC, ING Capital LLC, Natixis, New York Branch, Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. “Rabobank Nederland”, New York Branch and Rabo Securities USA, Inc. (collectively, the “Lenders”) and TruGreen LP (the “Debt Financing Commitment”) and any related exhibits, schedules, annexes and supplements, pursuant to which, upon the terms and subject to the conditions set forth therein, the Lenders have agreed to lend the amounts set forth therein to TruGreen LP (the “Debt Financing”); and (ii) the related executed fee letter (the “Fee Letter”). The Debt Financing Commitment and the Fee Letter have not been amended or modified prior to the date of this Agreement (provided that the existence or exercise of the “flex” provisions contained in the Fee Letter shall not constitute an amendment or modification of the Debt Financing Commitment), and, as of the date hereof, of (i) each fully executed Equity Commitment Letter (the financing provided for therein being collectively referred to as respective commitments contained in the “Equity Financing”) and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” have not been withdrawn, terminated or rescinded in any respect, and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated thereinKnowledge of TruGreen Holdings, debt financing in the amounts set forth therein; provided that fee amounts and pricing termsno such withdrawal, including terms of the “market flex” and rescission, amendment or modification is contemplated (except for replacements as permitted by Section 5.10(a)). There are no other commercially sensitive informationagreements, in the fee letter entered into in connection with side letters or arrangements to which TruGreen LP is a party relating to the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted TermsFinancing Commitment. As of the date hereof, none of the Debt Financing Commitment Letters has been withdrawnis in full force and effect and constitutes the legal, terminated, repudiated, rescinded, amended, amended valid and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, binding obligation of TruGreen LP and, to the extent related to any Person that is not an Affiliate Knowledge of ParentTruGreen Holdings, the other parties thereto (subject in each case to the knowledge effect of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization fraudulent conveyance, reorganization, moratorium, receivership or similar Applicable Laws relating to or affecting creditors’ rights generally and by general principles equity principles, whether considered in Proceedings in equity or at law). Other than as expressly set forth in the Debt Financing Commitment (including as may be set forth in any such Debt Financing Commitment as it may be amended after the date hereof in compliance with, and not in violation of, the provisions hereof), there are no conditions precedent related to the funding of equitythe full net proceeds of the Debt Financing under any agreement relating to the Debt Financing to which TruGreen LP or any of its Affiliates is a party. As of the date hereof, the Financing Commitment Letters are TruGreen LP is not in full force and effect and assuming the satisfaction or waiver breach of any of the terms or conditions set forth in Section 7.01 the Debt Financing Commitment and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 on with notice or lapse of time or both would constitute a default) by TruGreen LP under the part of Parent or Merger Sub Debt Financing Commitment, or, to the knowledge Knowledge of ParentTruGreen Holdings, any the other parties thereto, under any of to the Debt Financing Commitment LettersCommitment. Assuming TruGreen LP has fully paid or caused to be fully paid all commitment fees or other fees required to be paid on or prior to the satisfaction of date hereof pursuant to the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as Debt Financing Commitment. As of the date hereof, Parent does not have none of TruGreen Holdings or any of its Affiliates has any reason to believe that the full amount under of the Debt Financing Commitment Letters will not be available to Parent or Merger Sub on at the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt FinancingClosing.
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Scotts Miracle-Gro Co)
Financing. Parent (a) RT Rhombus has delivered received and accepted an executed commitment letter, dated November 8, 2015 (such commitment letter, including all exhibits, schedules, annexes and amendments thereto, the “Debt Commitment Letter”) from the lenders party thereto (collectively, the “Lenders”) pursuant to which the Lenders have agreed, subject to the Company trueterms and conditions thereof, correct to provide the debt financing described therein (the “Debt Financing”). RT Rhombus has received and complete copies, accepted the engagement letter (the “Engagement Letter”) described in the last sentence of paragraph 1 of the Debt Commitment Letter (as of the date hereof). Purchaser has received and accepted an executed commitment letter, of (i) each fully executed Equity Commitment Letter dated November 8, 2015 (the financing provided for therein being collectively referred to as “Preferred Commitment Letter”) from the investors party thereto (collectively, the “Preferred Investors”) pursuant to which the Preferred Investors have agreed, subject to the terms and conditions thereof, to purchase equity securities of Purchaser as described therein (the “Preferred Financing”). Purchaser has received and accepted an executed equity commitment letter, dated November 8, 2015 (the “Sponsor Commitment Letter”) from the Guarantor, pursuant to which the Guarantor has committed, subject to the terms and conditions thereof, to purchase equity securities of Purchaser as described therein (the “Sponsor Equity Financing”) ). The Sponsor Commitment Letter provides that the Company is a third-party beneficiary thereof and (ii) a fully executed commitment letter (together with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) is entitled to provide, enforce such agreement on the terms and subject only to the conditions expressly stated therein. Purchaser has received and accepted the Rollover Commitment Letter (such Rollover Commitment Letter, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection together with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Preferred Commitment Letters, Letter and the net proceeds contemplated by the Debt Financing Sponsor Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment “Commitment Letters”) from each of the Aggregate Merger ConsiderationRollover Investors pursuant to which the Rollover Investors have committed, subject to the terms and conditions thereof, to make any repaymenttransfer, repurchase or refinancing of debt of contribute and deliver to Purchaser the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement Rollover Shares (the “Required AmountRollover Investment”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing The Rollover Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, provides that the Company is a third third-party beneficiary thereof as set forth and is entitled to enforce such agreement on the terms and subject to the conditions therein. Parent The Debt Financing pursuant to the Debt Commitment Letter, the Preferred Financing pursuant to the Preferred Commitment Letter, the Sponsor Equity Financing pursuant to the Sponsor Commitment Letter, and Merger Sub acknowledge and agree that their obligation the Rollover Investment pursuant to consummate the Merger and pay Rollover Commitment Letter are collectively referred to in this Agreement as the Aggregate Merger Consideration is not conditioned on the availability of Debt “Financing.”
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct (x) a true and complete copies, as copy of the date hereof, of (i) each fully executed Equity Commitment Letter (Letter, pursuant to which the financing provided for therein being collectively referred Sponsor has committed to as the “Equity Financing”) and (ii) a fully executed commitment letter (together provide Parent with all exhibits, schedules, and annexes thereto) and fee letter from the financial institutions identified therein, the “Debt Financing Commitment Letter” and, together with the Equity Commitment Letters, the “Financing Commitment Letters”) to provide, on the terms and subject only to the conditions expressly stated therein, debt equity financing in the amounts amount set forth therein; provided that fee amounts and pricing terms, including terms therein for the purpose of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms. As of the date hereof, none of the Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of funding the transactions contemplated by this Agreement (the “Required AmountEquity Financing”), assuming and to which the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub Company is a party theretoand pursuant to which the Company can cause Parent to draw down the full proceeds of the Equity Financing and (y) andtrue and complete copies of executed equity commitment letters pursuant to which the direct or indirect investors in Sponsor (such Persons, in such capacity, collectively, the “Investors”) have committed to provide Sponsor, directly or indirectly, with equity financing in the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally amount set forth therein (each an “Investor Commitment Letter” and by general principles of equitycollectively the “Investor Commitment Letters”). As of the date hereof, each of the Financing Investor Commitment Letters are and the Equity Commitment Letter is in full force and effect and assuming has not been withdrawn, rescinded or terminated or otherwise amended or modified in any respect, and no such amendment or modification to such Investor Commitment Letter or the satisfaction or waiver Equity Commitment Letter is contemplated. The Equity Commitment Letter and each Investor Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent and the other parties thereto (in the case of the Equity Commitment Letter) and Sponsor and the other parties thereto (in the case of each Investor Commitment Letter), and is enforceable against Parent and the other parties thereto (in the case of the Equity Commitment Letter) and Sponsor and the other parties thereto (in the case of each Investor Commitment Letter), in each case, except as may be limited by the Enforceability Exceptions. There are no other agreements, side letters or arrangements relating to the Equity Commitment Letter or the Equity Financing. As of the date hereof, Parent is not aware of any misrepresentation in any Investor Commitment Letter or the Equity Commitment Letter. The Equity Commitment Letter and the Investor Commitment Letters constitute the entire and complete agreement between the parties thereto with respect to the Equity Financing. Each of Sponsor and Parent is not in default or breach of any of the terms or conditions set forth in Section 7.01 and Section 7.02 on the Closing DateInvestor Commitment Letters or the Equity Commitment Letter and, Parent has as of the date hereof, no reason to believe that any event has occurred whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default default, breach or breach on the part of Parent failure to satisfy any condition precedent set forth therein. There are no conditions precedent or Merger Sub or, other contingencies related to the knowledge funding of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter, and no Person has any right to impose, and none of the Investors, Sponsor or Parent has any obligation to accept, any condition precedent to such funding other than the conditions expressly set forth in the Equity Commitment Letter provided and Investor Commitment Letters nor any reduction to the Company aggregate amount available under the Equity Commitment Letter on the Closing Date (nor any term or prior to condition which would have the effect of reducing the aggregate amount available under the Equity Commitment Letter on the Closing Date). As of the date hereof. Each , neither Parent nor Merger Sub is aware of any fact or occurrence that, with or without notice, lapse of time or both, could reasonably be expected to (i) make any of the assumptions or any of the statements set forth in the Investor Commitment Letters or the Equity Commitment Letter providesinaccurate, and will continue (ii) result in any of the terms or conditions in the Investor Commitment Letters or Equity Commitment Letter not being satisfied, (iii) cause the Investor Commitment Letters or the Equity Commitment Letter to provide, that be ineffective or (iv) otherwise result in the Company is Equity Financing not being available on a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation timely basis in order to consummate the transactions contemplated by this Agreement. As of the date hereof, none of the Investors or the Sponsor has notified Sponsor, Parent or Merger and pay Sub of its intention to terminate any Investor Commitment Letter or the Aggregate Merger Consideration is Equity Commitment Letter or to not conditioned on provide its portion of the availability of Debt Equity Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (MAGNACHIP SEMICONDUCTOR Corp)
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date hereofof this Agreement, of (ia) each fully an executed commitment letter (the “Equity Commitment Letter Letter” from Pamplona Capital Partners IV, L.P. to invest, subject to the terms and conditions therein, cash in the aggregate amount set forth therein (the financing provided for therein being collectively referred to as the “Equity Financing”) and (iib) a fully an executed commitment letter (the “Debt Commitment Letter”) from Barclays Bank PLC, Xxxxxx Xxxxxxx Senior Funding, Inc., Macquarie Capital (USA) Inc., MIHI LLC and GCI Capital Markets LLC (each such financial institution and its Affiliates, together with all exhibits, schedules, any Person and annexes thereto) its Affiliates that becomes a party to the Debt Commitment Letter and fee letter from any joinder agreement related thereto after the financial institutions identified thereindate hereof, the “Debt Financing Sources”), together with the Equity Commitment Letter, the “Commitment Letters”) to provide, subject to the terms and conditions therein, debt financing in the aggregate amount set forth therein (the “Debt Financing” and, together with the Equity Commitment LettersFinancing, the “Financing Commitment LettersFinancing”) to provide, on the terms and subject only to the conditions expressly stated therein, debt financing in the amounts set forth therein; provided that fee amounts and pricing terms, including terms of the “market flex” and other commercially sensitive information, in the fee letter entered into in connection with the Debt Financing, may have been redacted to the extent, in each case, they are Permissible Redacted Terms). As of the date hereof, none of (A) neither the Financing Equity Commitment Letters Letter nor the Debt Commitment Letter has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, (B) no terms thereunder have been waivedsuch amendment or modification is contemplated (other than amendments or modifications that are not prohibited by Section 7.9(a)), and no (C) the respective obligations and commitments contained in such withdrawal, termination, repudiation, rescission, amendment, amendment letters have not been withdrawn or rescinded. Parent or Merger Sub has fully paid any and restatement, modification all commitment fees or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded other fees in accordance connection with the Equity Commitment Letters Letter and the Debt Commitment Letter that are due and payable on or prior to the date hereof. Assuming that the Financing contemplated by the Commitment Letters is funded in accordance with the Debt Financing Commitment Letter, as applicablefully funded, the net proceeds contemplated by the Equity Commitment LettersLetters will, and the net proceeds contemplated by the Debt Financing Commitment Letter, will in the aggregateaggregate (and when combined with the cash on hand at the Company and its Subsidiaries on the Closing Date), be sufficient for Parent, Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration and any other amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) Transactions and Section 7.02(b) on the Closing Dateto pay all related fees and expenses. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing The Commitment Letters are in full force and effect and assuming the satisfaction or waiver as of the conditions set forth in Section 7.01 and Section 7.02 on date hereof. As of the Closing Datedate of this Agreement to the Knowledge of the Parent, Parent has no reason to believe that any 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 on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under cause any of the conditions to the Financing Commitment Lettersnot to be satisfied or the full amount of the Financing not to be funded. Assuming As of the satisfaction date of this Agreement, assuming that each of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as Article VIII of the date hereofAgreement are satisfied at Closing, Parent does not have any reason to believe that any of the full amount under conditions to the Financing Commitment Letters will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the Closing Date. As date of the date hereof, the Equity Closing. The Commitment Letter contains Letters contain all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As Except for a fee letter with respect to fees relating to the Debt Financing (a copy of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter has been provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, redacted in a customary manner as to fees and will continue market flex) (the “Fee Letter”), as of the date hereof there are no side letters or other agreements, contracts or arrangements to provide, that the Company which Parent or any of its Affiliates is a third party beneficiary thereof related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth therein. Parent in the Commitment Letters and Merger Sub acknowledge any customary engagement letter and agree non-disclosure agreements that their obligation to consummate do not impact the Merger and pay conditionality or amount of the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.
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Financing. Parent (a) Purchaser has delivered to the Company true, correct Seller true and complete copies, as of the date hereof, copies of (i) each a fully executed commitment letter dated on or about the date of this Agreement (together with all exhibits, annexes, schedules, and term sheets attached thereto and as amended, restated, amended and restated, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.19, the “Equity Commitment Letter Letter”) from certain investment partnerships advised by TowerBrook (the financing provided “Equity Investors”), providing, subject only to the terms and conditions therein, for an equity investment in Purchaser in cash in the aggregate amount set forth therein being collectively referred to as (the “Equity Financing”) and (ii) a fully executed commitment letter and Redacted Fee Letters dated on or about the date of this Agreement from the financial institutions identified therein (as such parties may be supplemented or amended from time to time, the “Lenders”) (such letters, together with all exhibits, annexes, schedules, and annexes thereto) term sheets attached thereto and fee letter as amended, restated, amended and restated, modified, supplemented, replaced, or extended from time to time after the financial institutions identified thereindate of this Agreement in compliance with Section 5.19, collectively, the “Debt Financing Commitment Letter” and, together with the Equity Commitment LettersLetter, the “Financing Commitment Letters”) to provide), on the terms and providing, subject only to the terms and conditions expressly stated set forth therein, for (A) debt financing in cash in the amounts set forth therein; provided that fee amounts therein (collectively, the “TL Financing”) and pricing terms, including terms (B) the amendment and rollover of the obligations under the CBTS Receivables Financing Documents (the “market flexCBTS Receivables Financing Rollover” and, together with the TL Financing, the “Debt Financing”; the Debt Financing together with the Equity Financing, the “Financing”). As of the date of this Agreement, neither of the Financing Letters in the form delivered to Seller has been amended or modified, and to the knowledge of Purchaser, no such amendment or modification is contemplated, except as expressly contemplated by the Debt Commitment Letter to bring in additional agents and lenders thereto in accordance with the terms thereof, and none of the obligations or commitments contained therein have been withdrawn, terminated, repudiated or rescinded in any respect. Purchaser has fully paid any and all commitment fees and other commercially sensitive information, in fees pursuant to the fee letter entered into Financing Letters or otherwise in connection with the Debt Financing, may have been redacted Financing that are required by the Financing Letters to be paid on or prior to the extentdate of this Agreement. Assuming the Financing is funded or effectuated in accordance with the Financing Letters, the net proceeds thereof (together with any rollover amounts contemplated therein) contemplated by the Financing Letters (after netting out applicable fees, expenses, original issue discount, and similar premiums and charges and after giving effect to the maximum amount of market flex (including original issue discount flex) provided under the Debt Commitment Letter) will in each casethe aggregate be sufficient to enable Purchaser to consummate the Transactions on the Principal Closing Date (including the payment of related fees, they are Permissible Redacted Termscosts, and expenses required to be paid by Purchaser on the Principal Closing Date) (the “Principal Closing Obligations”). As of the date hereof, none of the each Financing Commitment Letters has been withdrawn, terminated, repudiated, rescinded, amended, amended and restated or modified, no terms thereunder have been waived, and no such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver has occurred, and, to the extent related to any Person that is not an Affiliate of Parent, to the knowledge of Parent, there is no condition existing that would require any such withdrawal, termination, repudiation, rescission, amendment, amendment and restatement, modification or waiver, except to the extent any such amendment is not prohibited under this Agreement. Assuming the Equity Financing is funded in accordance with the Equity Commitment Letters and the Debt Financing is funded in accordance with the Debt Financing Commitment Letter, as applicable, the net proceeds contemplated by the Equity Commitment Letters, and the net proceeds contemplated by the Debt Financing Commitment Letter, will Letter in the aggregate, be sufficient for Parent, Merger Sub and the Surviving Corporation form delivered to pay the amounts required to be paid in connection with the Merger and the other transactions contemplated hereby, including payment of the Aggregate Merger Consideration, to make any repayment, repurchase or refinancing of debt of the Company and its Subsidiaries contemplated by this Agreement, to pay any other amounts required to be paid by Parent or Merger Sub on or prior to the Closing Date in connection with the consummation of the transactions contemplated by this Agreement (the “Required Amount”), assuming the satisfaction of the conditions set forth in Section 7.02(a) and Section 7.02(b) on the Closing Date. Each Financing Commitment Letter is enforceable against Parent, Merger Sub (to the extent Parent or Merger Sub is a party thereto) and, to the knowledge of Parent, such other Persons party thereto in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Applicable Laws affecting creditors’ rights generally and by general principles of equity. As of the date hereof, the Financing Commitment Letters are in full force and effect and assuming the satisfaction or waiver of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, Parent has no reason to believe that any 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 Merger Sub or, to the knowledge of Parent, any other parties thereto, under any of the Financing Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 7.01 and Section 7.02 on the Closing Date, as of the date hereof, Parent does not have any reason to believe that the full amount under the Financing Commitment Letters will not be available to Parent or Merger Sub on the Closing Date. As of the date hereof, the Equity Commitment Letter contains all of the conditions precedent and other conditions to the obligations of the parties thereunder to make the full amount of the Equity Financing available to Parent on the terms therein. As of the date hereof, there are no side letters or other agreements, arrangements or understandings to which Parent or any Equity Investor is a party that would adversely affect the availability of the Equity Financing on the Closing Date, other than as expressly set forth in the Equity Commitment Letter provided to the Company on or prior to the date hereof. Each Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereof as set forth therein. Parent and Merger Sub acknowledge and agree that their obligation to consummate the Merger and pay the Aggregate Merger Consideration is not conditioned on the availability of Debt Financing.Seller
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