Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein. (b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Avaya Inc)
Financing. (a) Parent Buyer has delivered to the Company true, correct Parent a true and complete copies, as copy of the executed Debt Commitment Letters. None of the Debt Commitment Letters has been amended or modified in any manner prior to the date of this Agreement. Neither Buyer nor any of Affiliates has entered into any agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject side letter or other arrangement relating to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of Closing Date Payments or the transactions contemplated by this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (other than as set forth in the “Debt Commitment Letters” and, together with . The proceeds of the Equity Funding Letters, the “Debt Financing Letters”) to provide, subject (both before and after giving effect to the terms exercise of any or all “market flex” provisions related thereto), along with cash of the Buyer, will be sufficient to consummate the transactions contemplated hereby, including the making of all Closing Date Payments on the Closing Date and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred the making of any payments pursuant to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)Section 2.06. As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Commitment Letters have not been withdrawn or rescinded in any respect. Parent As of the date hereof, the Debt Commitment Letters are in full force and effect and represent a valid, binding and enforceable obligation of Buyer and, to the knowledge of Buyer, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or Merger Sub waiver of the Financing Conditions and except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity). Buyer has fully paid (or caused to be paid) any and all commitment fees or and other fees in connection with the Equity Funding Letters and the Debt Commitment Letters amounts that are due and payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesDebt Financing. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent or Merger Sub Buyer or, to the knowledge of Buyer, any other party thereto, under the Equity Funding Letters or any of the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date hereof, Buyer has no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis any term of the Debt Commitment Letters. There are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing, other than the Financing Conditions. Buyer understands and acknowledges that under the terms of this Agreement, Parent does not have any reason Buyer’s obligation to believe that any of consummate the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent acquisition is not making in any representation regarding the inaccuracy way contingent upon or otherwise subject to Buyer’s consummation of the representations and warranties set forth in Article 3any financing arrangements, Buyer’s obtaining of any financing or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parentavailability, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates grant, provision or extension of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Buyer.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Aleris Corp), Purchase and Sale Agreement (Signature Group Holdings, Inc.)
Financing. (a) 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, among Parent and Deutsche Bank Securities Inc., Deutsche Bank Trust Company Americas and JPMorgan Chase Bank and (ii) the commitment letter with respect to the first lien mortgage loan, dated as of this Agreementthe date hereof, of among Parent and German American Capital Corporation, Deutsche Bank AG, New York Branch and JPMorgan Chase Bank (i) executed commitment letters (collectively, the “Equity Funding LettersDebt Financing Commitments”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto committed, subject to the terms and conditions thereinthereof, equity financing in to lend the aggregate amount amounts set forth therein (being collectively referred to as the “Equity Debt Financing”), and (iiiii) executed the equity commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreementhereof, from Xxxxxx Xxxxxxx Senior FundingFC Investor, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. LLC (the “Debt Commitment LettersEquity Financing Commitment” and, together with the Equity Funding LettersDebt Financing Commitments, the “Financing LettersCommitments”) ), pursuant to providewhich such parties have committed, subject to the terms and conditions thereinthereof, debt financing in an aggregate amount to invest the cash amounts set forth therein (being collectively referred to as the “Debt Equity Financing”” and, and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). As The Financing Commitments are in full force and effect and are legal, valid and binding obligations of Parent and, to the knowledge of Parent, the other parties thereto. None of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been or will be amended or modified, no such amendment or modification is contemplatedexcept as consistent with Section 7.9(c), and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, respect as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any Financing Commitment and subject to the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy accuracy of the representations and warranties of the Company set forth in Article 3IV and the satisfaction of the conditions set forth in Sections 8.1 and 8.2 hereof, neither Parent nor Merger Sub 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 in any of the Financing Commitments on or prior to the Closing Date. 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 Merger Consideration as provided herein (including for the Company Options as provided herein), all other necessary payments by it, Merger Sub or the 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 or other contingencies to the funding of the Financing other than as set forth in the Financing Commitments. There are no side letters or other agreements, contracts or arrangements (except for customary fee letters and engagement letters) related to the funding or investing, as applicable, of the full amount of the Debt Financing other than as expressly set forth in or contemplated by the Debt Financing Commitments. As of the date of this Agreementhereof, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3has fully paid, or the failure of the Company caused to perform its obligations hereunder. The Financing Letters contain be fully paid, any and all of the conditions precedent commitment fees which are due and payable with respect to the obligations of the parties thereunder to make Debt Financing available to Parent on the terms thereinCommitments.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 2 contracts
Samples: Merger Agreement (Station Casinos Inc), Merger Agreement (Station Casinos Inc)
Financing. (a) Parent has delivered to the Company true, correct true and complete copies, as copies of the date of this Agreement, of (i) fully executed commitment letters letter (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity FinancingDebt Commitment Letter”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date April 27, 2011, by and between Parent and each of this Agreement, from X.X. Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. LLC and JPMorgan Chase Bank, N.A. (N.A., confirming the “Debt Commitment Letters” and, together commitments of the lender party thereto to provide Parent with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein connection with the transactions contemplated hereby (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or .
(b) The Debt Commitment Letters has been amended or modifiedLetter is in full force and effect and is a valid and binding obligation of Parent and, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy As of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2date hereof, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) Letter has not been amended or modified in any respect, and the commitments contained therein have not been withdrawn, rescinded or otherwise modified in any respect, other amounts required than pursuant to be paid in connection with the consummation “Fee Letter” referred to therein (a true, correct and complete copy of which has been made available to the Transactions Company prior to the date of this Agreement, subject to the redaction of certain fee and to pay all related fees and expensesmarket flex provisions of such Fee Letter). As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub Subsidiary under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding Letter. Except for the effect payment of customary fees, there are no conditions precedent to the funding of the inaccuracy full amount of the representations Debt Financing other than the conditions precedent set forth in or contemplated by the Debt Commitment Letter, and warranties in Article 3. As as of the date of this Agreement, hereof Parent does not have any has no reason to believe that it will not be able to satisfy any term or condition of closing of the conditions Debt Financing that is required to be satisfied as a condition of the Debt Financing, or that the Debt Financing will not be satisfied or that the Financing will not be made available to Parent or Merger Sub on prior to the date consummation of the Closing; provided that Parent is not making any representation regarding Merger. Subject to the inaccuracy terms and conditions of the representations and warranties set forth in Article 3Debt Commitment Letter, or the failure aggregate proceeds of the Company to perform its obligations hereunder. The Financing Letters contain all Debt Financing, if funded, together with available cash of the conditions precedent Parent, is in an amount sufficient to pay the obligations of the parties thereunder to make Financing available to Parent on aggregate Company Share Cash Consideration and Preferred Share Cash Consideration upon the terms therein.
(b) Neither contemplated by this Agreement and pay all related fees and expenses of Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) Subsidiary and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted their respective Representatives pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Agreement.
Appears in 2 contracts
Samples: Merger Agreement (LoopNet, Inc.), Merger Agreement (Costar Group Inc)
Financing. (a) Parent has delivered Buyer acknowledges that its obligation to consummate the Company true, correct and complete copies, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt transactions contemplated by this Agreement is not and will not be subject to the receipt by Buyer of any financing or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of any transaction other than the Transactions occurrence of the ABI Transaction Closing (and to pay all related fees and expensesBuyer further acknowledges that it has no termination rights regarding such financing). As of the date of this Agreement, no event Buyer has occurred whichdelivered to ABI true, correct and complete copies of the executed commitment letter from the Financing Sources (including all exhibits, schedules, and annexes to each such letter as and to the extent delivered to ABI on or prior to the date of this Agreement, collectively, the “Original Commitment Letter”), a copy of which is attached hereto as Exhibit A, together with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; any related fee letters (provided that Parent is not making any representation regarding the effect existence or amount of fees, “market flex” provisions, pricing terms and pricing caps set forth therein, none of which would reasonably be expected to adversely affect the availability of the inaccuracy Financing, or reduce the aggregate principal amount thereof, may be redacted in a customary manner), pursuant to which the counterparties thereto have committed to provide the financing described therein in connection with the transactions contemplated hereby. The Original Commitment Letter and any other commitment letter (including any replacement of the representations Original Commitment Letter) executed in accordance with Section 5.04, as replaced, amended, supplemented, modified or waived in accordance with Section 5.04, including all exhibits, schedules and warranties in Article 3annexes to such letters, are hereinafter referred to together as the “Commitment Letter”. The financing contemplated pursuant to the Commitment Letter (including, for the avoidance of doubt, any debt, equity or securities offering contemplated thereby) is hereinafter referred to as the “Financing”. As of the date of this Agreement, Parent does the Original Commitment Letter has not have been withdrawn, terminated, rescinded, amended or otherwise modified in any reason respect. There are no agreements, side letters or arrangements (a) to believe that which Buyer or any of the conditions its Affiliates is a party relating to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parentbetween Buyer or any of its Affiliates, Merger Sub nor any member of on the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreementone hand, arrangement or understanding with any bank or investment bank or other potential provider and providers of debt or equity financing or any of their respective Affiliates, on an exclusive basis (or otherwise on terms the other hand, that have not been disclosed to ABI prior to the date hereof and that could reasonably affect the availability of the Financing. The Commitment Letter constitutes the legally valid and binding obligation of Buyer and each of its applicable Affiliates and, to the knowledge of Buyer, the other parties thereto, enforceable in accordance with its terms, except to the extent that such enforceability may be expected limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws relating to prevent or affecting creditors’ rights generally or by general equitable principles (whether in equity or otherwise hinder) such provider from providing at law). As of the date hereof, neither Buyer nor any of its Affiliates is in breach of any of the terms or seeking conditions set forth in the Original Commitment Letter. As of the date hereof, no Financing Source has notified Buyer in writing of its intention to terminate the Original Commitment Letter or not to provide such financing to any third party in connection with a transaction relating the Financing. There are no conditions precedent related to the Company or its Subsidiaries (including funding of the Financing, other than as expressly set forth in the Commitment Letter. The aggregate proceeds available to be disbursed as provided under the Original Commitment Letter as of the date hereof are sufficient to enable Buyer to pay in cash all amounts required to be paid by it in cash in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c)transactions contemplated hereby. Neither Parent, Merger Sub nor any member As of the Equity Provider Group date hereof, Buyer has caused or induced paid in full any Person to take any action that, if taken and all commitment and other fees required by Parent, Merger Sub or any member the Original Commitment Letter that are due as of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)date hereof.
Appears in 2 contracts
Samples: Purchase Agreement (Anheuser-Busch InBev S.A.), Purchase Agreement (Molson Coors Brewing Co)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, Attached as Schedule 5.05 are copies of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) dated June 17, 2005 from Silver Lake Partners IIIBank of America, L.P. N.A., Banc of America Securities LLC, Bank of America Bridge LLC and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. which Buyer and JPMorgan Chase Bank, N.A. MergerCo have delivered to the Company and the Stockholders’ Representative (the “Financing Commitments”). The cash proceeds of the Financing Commitments plus cash equivalents of Buyer and its Subsidiaries shall be used to make the payments required by Article 2 and all other amounts to be paid by Buyer, MergerCo or the Surviving Corporation hereunder, including the repayment of the Senior Credit Agreement, the consummation of the Debt Commitment Letters” Offer and the Consent Solicitation (or, if required by the Buyer, the Discharge/Defeasance) and the Tender Offer and the payment of all Transaction Expenses, and to provide working capital to the Surviving Corporation. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Buyer and, together with to Buyer’s knowledge, each of the Equity Funding Lettersother parties thereto. Each of the Financing Commitments is in full force and effect and has not been amended or modified in any respect, except for such amendments or modifications that would not reasonably be expected to prevent, materially impede or materially delay the “Financing Letters”) to provide, subject to consummation by Buyer or MergerCo of the terms transactions contemplated hereby and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as under the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)other Transaction Agreements. As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Buyer or Merger Sub MergerCo, and to Buyer’s and MergerCo’s knowledge as of the date hereof, any other parties thereto, under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing Commitments. As of the date of this Agreementhereof, Parent does not Buyer and MergerCo have any no reason to believe that any term or condition of the conditions to closing contained in the Financing will Commitments should not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent be satisfied on a timely basis after the date hereof. Subject to their terms and conditions, the financing contemplated by the Financing Commitments (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party the “Financing”), when funded in connection with a transaction relating to the Company or its Subsidiaries (including in connection accordance with the making of any Takeover Proposal)Financing Commitments, will provide Buyer, MergerCo and the Surviving Corporation with financing at the Effective Time sufficient to repay the Senior Credit Agreement, consummate the Debt Offer and the Consent Solicitation (or, if required by the Buyer, the Discharge/Defeasance), in the case Tender Offer, the payment of clauses (i) all Transaction Expenses and (ii), in connection with the Merger or upon the other Transactions, except, in terms contemplated by this Agreement and the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Escrow Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Mueller Water Products, Inc.), Merger Agreement (Walter Industries Inc /New/)
Financing. (a) Parent has delivered to the Company true, correct Attached hereto as Exhibit C is a true and complete copiescopy of an executed debt commitment letter, a redacted (as of to fees and certain other economic terms, but not as to conditionality) fee letter and related term sheets (as amended or otherwise modified, the date of this Agreement“Debt Commitment Letter”) from Xxxxx Fargo Bank, of (i) executed commitment letters National Association, WF Investment Holdings, LLC and Xxxxx Fargo Securities, LLC (the “Equity Funding LettersLenders”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinof which, equity financing the Lenders have committed to provide Parent and/or Merger Sub with loans in the aggregate amount set forth amounts described therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). The Debt Commitment Letter is a legal, valid and binding obligation of Parent or Merger Sub and, to Parent’s knowledge, the other parties thereto, enforceable in accordance with its terms (except in all cases as such enforceability may be limited by the Enforceability Exceptions). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Letter is in full force and effect, and has not been withdrawn, rescinded or terminated or otherwise amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as As of the date hereof, (i) neither Parent nor Merger Sub is in breach of any of the Equity Funding Letters and terms or conditions set forth in the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger SubLetter, and (ii) to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement’s knowledge, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach, default or breach on the part of failure by Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making to satisfy any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3condition precedent set forth therein. As of the date hereof, no Lender has notified Parent or Merger Sub of its intention to terminate the Debt Commitment Letter or not to provide the Financing. The net proceeds from the Financing, together with cash on hand at the Parent, will be sufficient to consummate the Merger and the other transactions contemplated by this Agreement, including the payment by Parent does not and Merger Sub of the aggregate Merger Consideration, any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation, and any related repayment or refinancing of any Indebtedness of Company or any of its Subsidiaries, and any other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents. Parent or Merger Sub has paid in full any and all commitment or other fees required by the Debt Commitment Letter that are due as of the date hereof. Other than the Debt Commitment Letter, there are no side letters, understandings or other agreements or arrangements setting forth conditions precedent or other contingencies related to the funding of the full amount of the Financing to which Parent, Merger Sub or any of their respective Affiliates are a party. 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”). As of the date hereof, neither Parent nor Merger Sub has any legally binding obligation to accept any condition precedent to such funding other than the Disclosed Conditions, nor 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 condition which would have the effect of reducing the aggregate amount available under the Debt Commitment Letter on the Closing Date). As of the date hereof, neither Parent nor Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis any of the conditions to the funding of the full amount of the Financing will not be satisfied at the Closing, or that the Financing will not be available to Parent or Merger Sub on the date Closing Date. For the avoidance of doubt, it is not a condition to Closing under this Agreement, nor to the consummation of the Closing; provided that Merger, for Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of to obtain the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub Financing or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)alternative financing.
Appears in 2 contracts
Samples: Merger Agreement (Neff Corp), Merger Agreement (H&E Equipment Services, Inc.)
Financing. (a) Parent has delivered to the Company a true, correct and complete copies, as copy of the date of this Agreement, of (i) an executed equity commitment letters letter (the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) pursuant to providewhich Mr. Shuipan Lin has committed, subject to the terms and conditions set forth therein, equity financing to invest in Parent, the aggregate cash amount set forth therein in order to allow Parent to make such payment of a portion of the aggregate Per Share Merger Consideration as are contemplated by this Agreement (being collectively referred to as the “Equity Financing”), and .
(iib) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Letter has not been amended or modified, no such amendment or modification is contemplatedcontemplated (other than amendments or modifications that are permitted by Section 6.9), and the respective obligations and commitments contained in such letters the Commitment Letter have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with Assuming (i) the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming in accordance with the Commitment Letter, (ii) the accuracy of the representations and warranties set forth in Article 3 Section 4.2 are correct, and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters (iii) Parent and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub are obligated to close pursuant to Section 2.2, Parent and Merger Sub will have at and after the Surviving Corporation Closing funds sufficient to pay the aggregate Per Share Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions contemplated by this Agreement upon the terms and to pay conditions contemplated hereby and all related fees and expensesexpenses associated therewith. The Commitment Letter is in full force and effect as of the date hereof and constitutes a legal, valid and binding obligation of Parent, Merger Sub and the other parties thereto (subject to the Bankruptcy and Equity Exception). As of the date of this Agreementhereof, 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 the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Letter. As of the date of this Agreementhereof, Parent does and Merger Sub do not have any reason to believe that any of the conditions to the Equity Financing will not be satisfied or that the Equity Financing will not be available to Parent or Merger Sub on the date of at the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain Commitment Letter contains all of the conditions precedent (or, where applicable, refers to customary conditions precedent for a transaction of the nature contemplated by the Commitment Letter) to the obligations of the parties Mr. Shuipan Lin thereunder to make the Equity Financing available to Parent on the terms therein.
(b) Neither Parent. As of the date hereof, Merger Sub nor there are no side letters or other agreements, contracts or arrangements to which Parent or any member of its Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis Financing other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), as expressly set forth in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (New Horizon Capital Iii, L.P.), Merger Agreement (Exceed Co Ltd.)
Financing. (ai) Parent has delivered to the Company true, correct complete and complete copiesfully executed copies of the commitment letter (including all related exhibits, schedules, annexes, supplements and term sheets attached thereto, and including any related fee letter as described below, as each of the foregoing may be amended, supplemented, replaced, substituted, terminated or otherwise modified or waived from time to time after the date of this Agreementhereof in compliance with Section 6.13, of (i) executed commitment letters (the “Equity Funding LettersDebt Commitment Letter”) from Silver Lake Partners IIIthe Debt Financing Sources party thereto, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) confirming their respective commitments to provide, subject to the terms and conditions therein, equity provide Parent or any of its Affiliates with debt financing in connection with the aggregate transactions contemplated hereby in the amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”).
(ii) The Debt Commitment Letter is in full force and effect and is a valid and binding obligation of Parent or its Affiliates party thereto and, to the knowledge of Parent, the other parties thereto, enforceable against Parent or its Affiliates party thereto and, to the knowledge of Parent, the other parties thereto in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and together with the Equity Financing collectively referred to as the “Financing”other laws affecting creditors’ rights generally and general principles of equity). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Letter has not been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Commitment Letter have not been withdrawn withdrawn, rescinded or rescinded in any respectotherwise modified. Parent or Merger Sub has fully All fees (if any) required to be paid any and all commitment fees or other fees in connection with the Equity Funding Letters and under the Debt Commitment Letters that are payable Letter on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be have been paid in connection with the consummation of the Transactions and to pay all related fees and expensesfull. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a material breach or default or breach on the part of Parent or Merger Sub or, to the Knowledge of Parent, any other party thereto under the Equity Funding Letters or any term of the Debt Commitment Letters; provided that Parent is not making any representation regarding Letter which would reasonably be expected to materially impair or adversely affect the effect Debt Financing. As of the inaccuracy date hereof, Parent and Merger Sub have no reason to believe that they or any other party thereto will be unable to satisfy on a timely basis any term of the representations and warranties in Article 3Debt Commitment Letter. As of the date of this Agreement, Parent does not have any has no reason to believe that (A) any of the conditions precedent or other contingencies related to the funding of the Debt Financing will not be satisfied or that (B) the Debt Financing will not be made available to Parent or Merger Sub on the date Closing Date. Parent and Merger Sub each expressly agree and acknowledge that Parent’s and Merger Sub’s obligations to consummate the Merger, are not subject to, or conditioned on, Parent’s or Merger Sub’s receipt of any financing.
(iii) There are no conditions precedent or other contingencies (including the consent of any lender under the Existing Credit Agreement which is not party to the Debt Commitment Letter) directly or indirectly related to the funding of the Closing; provided that Parent is not making any representation regarding the inaccuracy full amount of the representations and warranties Debt Financing other than as expressly set forth in Article 3the Debt Commitment Letter. Other than the Debt Commitment Letter, there are no other contracts, arrangements or understandings entered into by Parent or any Affiliate thereof related to the failure funding or investing, as applicable, of the Company Debt Financing (except for (i) customary fee letters relating to perform its obligations hereunder. The the commitments in the Debt Commitment Letter, a true, complete and fully executed copy of each of which has been provided to the Company, with only the fee amounts, pricing terms, pricing caps and other commercially sensitive terms redacted or (ii) customary engagement letters or non-disclosure agreements which do not impact the conditionality or amount of the Debt Financing).
(iv) Assuming the Debt Financing Letters contain all is funded on the Closing Date in accordance with the Debt Commitment Letter, the Closing is consummated in accordance with the terms of this Agreement and the transactions in the Rollover and Support Agreements are consummated in accordance with the terms thereof, following satisfaction of the conditions precedent to thereto, the obligations aggregate proceeds of the parties thereunder Debt Financing together with no more than $5 million of cash of the Company will be in an amount sufficient to make Financing available consummate the Merger and the other transactions contemplated by this Agreement, including to Parent on (i) pay the terms therein.
aggregate Merger Consideration pursuant to Section 4.01(a) and (bii) Neither pay all related fees and expenses of Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted their respective representatives pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Convey Health Solutions Holdings, Inc.), Merger Agreement (Convey Health Solutions Holdings, Inc.)
Financing. (a) Parent has delivered to the Company a true, correct accurate and complete copiescopy of the fully executed debt commitment letter, dated as of August 15, 2016 (together with all annexes, schedules and exhibits thereto) from the banks named therein to Parent (collectively, the “Debt Financing Commitment Letter”), pursuant to the terms, but subject to the conditions, of which the lender parties thereto have committed to provide Parent and Merger Sub with debt financing in the amounts set forth therein for purposes of, among other things, financing the Merger and the other transactions contemplated by this Agreement, paying related fees and expenses (such debt financing, as it may be modified (to the extent permitted by this Agreement), the “Debt Financing”). The Debt Financing Commitment Letter has not been amended, modified or waived in any manner prior to the date of this Agreement and, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners IIIno such amendment, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as modification or waiver is pending or contemplated. As of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Fundingneither Parent nor its Subsidiaries has entered into any side letter or other agreement relating to the funding of the Debt Financing, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. other than as set forth in the Debt Financing Commitment Letter and JPMorgan Chase Bank, N.A. the fee letters related thereto and there are no arrangements related to the Debt Financing that would be reasonably be expected to affect the availability of the Debt Financing. The proceeds of the Debt Financing (both before and after giving effect to the exercise of any or all “Debt Commitment Lettersmarket flex” andprovisions related thereto), together with cash on hand and each long-term debt financing that replaces all or a portion of the Equity Funding LettersDebt Financing (each such debt financing, the “Financing Letters”) to provide, subject each of which shall have conditions to the terms availability and conditions thereinfunding of the proceeds thereof that are no more restrictive, debt financing in an aggregate amount set forth therein taken as a whole, than the Financing Conditions (being collectively referred to as the defined below), a “Debt Replacement Financing”, and together with the Equity Financing collectively referred to as collectively, the “FinancingReplacement Financings”), will be sufficient for the payment of the Merger Amount when due on the Closing. As of the date hereofof this Agreement, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Financing Commitment Letter have not been withdrawn withdrawn, terminated or rescinded in any respect. As of the date of this Agreement, the Debt Financing Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or Merger Sub waiver of the conditions precedent set forth in Section 1 of the Debt Financing Commitment Letter (the “Financing Conditions”) and subject to the Enforceability Exception. Parent has fully paid (or caused to be paid) any and all commitment fees or and other fees in connection with the Equity Funding Letters and the Debt Commitment Letters amounts that are due and payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesDebt Financing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent Parent, or Merger Sub to the Knowledge of Parent, any other party thereto, under the Equity Funding Letters Debt Financing Commitment Letter, which breach or default would reasonably be expected to result in the Debt Commitment Letters; provided that inability of Parent is not making to satisfy (or materially delay the ability of Parent to satisfy) any representation regarding the effect of the inaccuracy of Financing Conditions on or prior to the representations and warranties in Article 3Closing Date. As of the date of this Agreement, Parent does not have any has no reason to believe that it or any of other party thereto will be unable to satisfy the conditions Financing Conditions at or prior to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of time contemplated hereunder for the Closing; provided . Parent understands and acknowledges that Parent under the terms of this Agreement, Parent’s obligation thereunder is not making in any representation regarding the inaccuracy way contingent upon or otherwise subject to Parent’s consummation of the representations and warranties set forth in Article 3any financing arrangements, Parent’s obtaining of any financing or the failure availability, grant, provision or extension of the Company any financing to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinParent.
(b) Neither ParentThe Debt Financing, Merger Sub nor any member when funded in accordance with the Debt Commitment Letter, together with cash on hand and the proceeds of the Equity Provider Group has Replacement Financings, if any, will provide Parent with financing on the Closing Date that is sufficient for (i) retained any financial advisor on an exclusive basis other than Affiliates of any member the payment of the Equity Provider Group or aggregate consideration payable by Parent on the Closing Date pursuant to Article III hereof and (ii) entered into an agreementthe payment of all costs, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably fees and expenses required to be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party borne by Parent and its Affiliates in connection with a transaction relating to this Agreement on the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Closing Date.
Appears in 2 contracts
Samples: Merger Agreement (G&k Services Inc), Merger Agreement (Cintas Corp)
Financing. (a) Parent and Purchaser will have sufficient funds to enable Purchaser to acquire all the outstanding Shares in the Offer at the Purchase Date and to consummate the Merger at the Effective Time.
(b) Parent has delivered provided to the Company true, complete and correct and complete copiescopies of (i) fully executed commitment letter, as of dated the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, provide equity financing in the an aggregate amount set forth therein (being collectively referred to as the “Equity FinancingCommitment Letter”), ) and (ii) fully executed commitment letters and redacted forms of fee lettersletter(s), dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Agreement (the “Debt Commitment Letters” and, together with the Equity Funding Letters, Letter”) pursuant to which Credit Suisse (the “Financing LettersLenders”) to providehave committed, subject to the terms and conditions thereinthereof, to provide debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, ,” and together with the Equity Financing financing referred to in clause (i) being collectively referred to as the “Financing”). As of the date hereofof this Agreement, none of neither the Equity Funding Letters Commitment Letter or Debt Commitment Letters Letter has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters Commitment Letter and the Debt Commitment Letters Letter that are payable on or prior to the date hereof and, as of the date hereof, and the Equity Funding Letters Commitment Letter and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) Letter are in full force and effect and are the valid, binding and enforceable obligations obligation of Parent and Merger Suband, and to the Knowledge knowledge of Parent, of the other parties thereto. Assuming There are no conditions precedent related to the Financing is funded and assuming the accuracy funding of the representations and warranties full amount of the Financing, other than as set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds or expressly contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters Letter or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesLetter, respectively. As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub Purchaser under any term or condition of the Equity Funding Letters or Commitment Letter and the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As Letter and, as of the date of this Agreement, 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 Parent or Merger Sub on Purchaser at the date of the Closing; provided dates that Parent is not making any representation regarding the inaccuracy of the representations Purchaser becomes obligated to accept for payment and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), pay for such actions taken after the No-Shop Period Start Date to the extent permitted Shares pursuant to the second sentence of Section 5.5(c). Neither ParentOffer and at the Effective Time, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)as applicable.
Appears in 2 contracts
Samples: Merger Agreement (Sunterra Corp), Merger Agreement (Diamond Resorts, LLC)
Financing. (a) Parent has delivered to the Company true, correct true and complete copiesfully executed copies of the commitment letter, dated as of October 1, 2010 between Parent and Xxxxxx Xxxxxxx Senior Funding, Inc, together with any related fee letter, engagement letter or other agreement, including all exhibits, schedules, annexes and amendments to such letter in effect on the date hereof (and with the understanding that Parent shall have delivered to the Company only redacted forms of the fee letter and the engagement letter) (collectively, the “Commitment Letter”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Parent) have severally agreed to lend the amounts set forth therein (the provision of such funds as set forth therein, the “Financing”) for the purposes set forth in such Commitment Letter. The Commitment Letter has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and the respective commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded in any respect as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no the Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of Parent and, to the knowledge of Parent, the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, affecting creditors’ rights generally, and (ii) except that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent under any term, or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making a failure of any representation regarding the effect condition, of the inaccuracy Commitment Letter to provide the Financing. Assuming the satisfaction of the representations Tender Offer Conditions set forth in clauses (iii)(d) and warranties in Article 3. As (iii)(e) of the date of this AgreementAnnex A, Parent does not have any reason reasonable basis to believe that it will be unable to satisfy on a timely basis any term or condition of the conditions Commitment Letter to provide the Financing required to be satisfied by it. There are no side letters or other agreements, contracts or arrangements (other than customary fee letters, engagement letters and confidentiality letters, redacted copies of which have been delivered to the Financing will not be satisfied or that Company) relating to the commitments to provide the Financing to consummate the Offer and the Merger. There are no conditions precedent or contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Commitment Letter. Subject to the terms and conditions of the Commitment Letter and assuming the satisfaction of the Tender Offer Condition set forth in clause (iii)(d)(B), the net proceeds contemplated from the Financing, together with the cash and cash equivalents of Parent and Purchaser, are and will not be, in the aggregate, sufficient for the satisfaction of all of Parent’s and Purchaser’s obligations under this Agreement, including the payment of the aggregate Per Share Amount and Merger Consideration and of all fees and expenses reasonably expected to be available incurred by the parties in connection herewith. Parent has fully paid all commitment fees or other fees required to Parent or Merger Sub on be paid prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Actel Corp), Merger Agreement (Microsemi Corp)
Financing. Section 4.7 of the Buyer’s Disclosure Letter sets forth true, accurate and complete copies of executed commitment letters from (ai) Parent has delivered the Lenders as the same may be amended and replaced in accordance with Section 6.13, (collectively, the “Debt Commitment Letters”), pursuant to which, and subject to the Company trueterms and conditions thereof, correct the Lenders have committed to lend the amounts set forth therein, and complete copiesassist in the placement of debt securities the proceeds of which will be provided, to Buyer, Holdings and Merger Sub for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”); and (ii) the Equity Sponsors, (the “Equity Commitment Letters” and together with the Debt Commitment Letters, the “Commitment Letters”) pursuant to which the Equity Sponsors have committed to invest the amounts set forth therein subject to the terms therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Each of the Debt Commitment Letters, in the form so delivered, is a legal, valid and binding obligation of Buyer, Holdings and Merger Sub and, to the Knowledge of the Buyer Parties as of the date hereof, the other parties thereto. Each of the Equity Commitment Letters, in the form so delivered, is a legal, valid and binding obligation of Buyer and the Equity Sponsors. As of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, modified and the respective commitments contained set forth in such letters the Commitment Letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Buyer, Holdings or Merger Sub under any term or condition of any of the Equity Funding Letters or the Debt Commitment Letters; provided provided, however, that Parent no representation is not making made with respect to any representation regarding default or breach occurring by reason of matters relating to the effect Company or any of the inaccuracy of the representations and warranties in Article 3its Subsidiaries. As of the date of this Agreement, Parent does not have none of the Buyer Parties has any reason to believe that it will be unable to satisfy on a timely basis any term or condition of the closing to be satisfied by it contained in any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent Commitment Letters. Buyer, Holdings or Merger Sub has fully paid any and all commitment fees or other fees required by the Commitment Letters to be paid on or before the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).this
Appears in 2 contracts
Samples: Merger Agreement (Adesa California, LLC), Merger Agreement (Adesa Inc)
Financing. (a) Purchaser will have, as of the respective dates of consummation of the Offer (including any subsequent offering period), access to sufficient funds to consummate the Offer (including any subsequent offering period) on the terms and subject to the conditions contemplated hereby, and for the payment to the Company of funds sufficient to pay holders of Company Options in accordance with the provisions of Section 6.7.
(b) Parent has delivered to the Company truea complete and correct copy of the executed commitment letter, correct and complete copies, dated as of the date of this Agreementhereof, of from Barclays Bank PLC (i) executed commitment letters (collectively, the “Equity Funding LettersFinancing Commitment”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) lender party thereto has committed to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as and the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of conditions set forth in the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions thereinPurchaser Credit Facility, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). Parent has also delivered to the Company complete and correct copies of any fee letters (redacted to exclude fees and certain other information at the request of the Financing Sources party thereto) (the “Fee Letters”) in connection with the Financing Commitment and the Purchaser Credit Facility and, as of the Agreement Date, except as would not reasonably be expected to materially impair the validity of the Financing Commitment, materially impact the availability of the Financing or materially decrease the amount of financing that could be expected to be provided under the Financing Commitment, there are no Contracts, agreements, side letters or arrangements to which Parent or Purchaser is a party relating to the funding or investing, as applicable, of the amount of the Financing other than as expressly set forth in the Financing Commitment, Fee Letters and Purchaser Credit Facility.
(c) As of the date hereof, none of the Equity Funding Letters or Debt Financing Commitment Letters has not been amended or modified, no such amendment or modification is presently contemplated, and the respective obligations and commitments contained in such letters the Financing Commitment have not been withdrawn or rescinded in any respect. Parent or Merger Sub Purchaser has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Financing Commitment Letters that are payable on or prior to the date hereof hereof, and, as of the date hereof, the Equity Funding Letters Financing Commitment is in full force and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) effect and are the valid, binding and enforceable obligations of Parent and Merger SubPurchaser (except as such enforceability may be (i) limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws affecting the enforcement of creditors’ rights generally and (ii) the exercise by courts of equity powers) and, to the Knowledge knowledge of ParentParent and Purchaser, the other parties thereto. .
(d) Assuming the Financing is funded and assuming the accuracy satisfaction or waiver of the representations conditions to Parent’s and warranties set forth in Article 3 and performance by Purchaser’s obligation to consummate the Company of its obligations under Section 5.2Offer (including any subsequent offering period), the net proceeds contemplated by of the Equity Funding Letters and Debt Commitment Letters willFinancing if funded in accordance with the Financing Commitments, together with Company cashParent’s consolidated cash and cash equivalents and borrowings under Purchaser Credit Facility are, in the aggregate be aggregate, sufficient for Merger Sub and the Surviving Corporation Purchaser to pay the aggregate Merger ConsiderationOffer Price, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt consummate the transactions contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts pay all fees and expenses required to be paid by Parent or Purchaser in connection with the consummation of Offer and the Transactions and to pay all related fees and expenses. Financing.
(e) As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub Purchaser under the Equity Funding Letters or Financing Commitments or, to the Debt Commitment Letters; provided that knowledge of Parent is not making and Purchaser, any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3other party thereto. As of the date of this Agreement, neither Parent does not have nor Purchaser has any 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 Parent or Merger Sub Purchaser on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy consummation of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinOffer.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 2 contracts
Samples: Tender Offer Agreement, Tender Offer Agreement (Jazz Pharmaceuticals PLC)
Financing. (a) As of the date of this Agreement, Parent has delivered to the Company true, correct true and complete copiescopies of (i) an executed commitment letter, dated as of the date of this Agreement, of (i) executed commitment letters between Parent and the Guarantor (the “"Equity Funding Letters”Commitment Letter") from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to provideGuarantor has committed, subject to the terms and conditions thereinthereof, equity financing to invest in Parent, directly or indirectly, the aggregate amount cash amounts set forth therein (being collectively referred to as the “"Equity Financing”"), ; and (iib) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. among Merger Sub and JPMorgan Chase Bank, N.A. the lenders thereto (the “"Debt Commitment Letters” " and, together with the Equity Funding LettersCommitment Letter, the “"Financing Letters”") pursuant to providewhich the lenders thereto have committed, subject to the terms and conditions thereinthereof, debt financing in an aggregate amount to lend the amounts set forth therein (being collectively referred to as the “"Debt Financing”" and, and together with the Equity Financing collectively referred to as Financing, the “"Financing”"). Parent has also delivered to the Company a true and complete copy of any fee letter in connection with the Debt Commitment Letters (any such letter, a "Fee Letter") (with only fee information and amounts and certain economic terms relating to market flex having been redacted).
(b) As of the date hereofof this Agreement, none (i) the Financing Letters and the terms of the Equity Funding Letters or Debt Commitment Letters has Financing have not been amended or modified, no such amendment or modification is contemplated, modified prior to the date of this Agreement except as permitted by this Agreement; and (ii) the respective commitments contained in such letters therein have not been withdrawn withdrawn, terminated or rescinded in any respect. As of the date of this Agreement, there are no other Contracts, agreements, side letters or arrangements to which Parent or Merger Sub has fully is a party relating to the funding or investing, as applicable, of the full amount of the Financing, other than as expressly set forth in the Financing Letters and any Fee Letters.
(c) Assuming the accuracy of the representations and warranties set forth in ARTICLE III such that the condition set forth in Section 7.1 is satisfied and compliance by the Company with its covenants and obligations under this Agreement such that the condition set forth in Section 7.2 is satisfied, the Financing, together with cash and cash equivalents of the Company and its Subsidiaries is sufficient to (i) make the payments for the aggregate Merger Consideration contemplated by this Agreement; and (ii) pay all fees and expenses required to be paid any and all commitment fees at the Closing by Parent or other fees Merger Sub in connection with the Equity Funding Letters Merger and the Debt Commitment Letters that are payable on or prior to the date hereof and, as Financing.
(d) As of the date hereofof this Agreement, the Financing Letters are in full force and effect and constitute the legal, valid and binding obligations of Merger Sub and, to the knowledge of Parent, each of the other parties thereto (including, with respect to the Equity Funding Letters and Commitment Letter, the Debt Commitment Letters (orGuarantor), if as applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the validenforceable against Merger Sub and, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge knowledge of Parent, the other parties thereto, as applicable, in accordance with their terms, except that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors' rights generally and by general principles of equity. Assuming Other than as expressly set forth in the Financing Letters and any Fee Letter, there are no conditions precedent or other contingencies related to the funding of the full proceeds of the Financing (including any flex provisions) pursuant to any agreement relating to the Financing to which the Guarantor, Parent, Merger Sub or any of their respective Affiliates is funded and a party. As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article 3 ARTICLE III such that the condition set forth in Section 7.1 is satisfied and performance compliance by the Company of with its covenants and obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or such that the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid condition set forth in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this AgreementSection 7.2 is satisfied, no event has occurred whichthat, with notice 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 under or, to the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making knowledge of Merger Sub, any representation regarding the effect of the inaccuracy other parties thereto pursuant to the Financing Letters. Assuming the accuracy of the representations and warranties set forth in Article 3ARTICLE III such that the condition set forth in Section 7.1 is satisfied and compliance by the Company with its covenants and obligations under this Agreement such that the condition set forth in Section 7.2 is satisfied, as of the date of this Agreement, Merger Sub has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of the Financing to be satisfied by it contained in the Financing Letters. As of the date of this Agreement, 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 Parent or and Merger Sub have fully paid, or caused to be fully paid, all commitment or other fees that are due and payable on or prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member terms of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Financing Letters.
Appears in 2 contracts
Samples: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)
Financing. (a) Parent has delivered to the Company true, correct (i) true and complete copiescopies of executed written commitments, as except for that certain fee letter, dated the date of this Agreement, from the lenders to the borrower thereunder (collectively, the "Debt Financing Commitments"), pursuant to which the lenders party thereto have agreed, subject only to the terms and conditions set forth therein, to provide or cause to be provided to Parent and/or Merger Sub debt financing in the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses (the "Debt Financing") and (ii) true and complete copies of executed written commitments (collectively, the "Equity Financing Commitments" and together with the Debt Financing Commitments, the "Financing Commitments"), pursuant to which the parties thereto have agreed, subject only to the terms and conditions set forth therein, to provide or cause to be provided to Parent and/or Merger Sub equity financing in the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses (the "Equity Financing" and together with the Debt Financing, the "Financing"). As of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded rescinded, in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Financing Commitments that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of before the date of this AgreementAgreement in connection therewith or pursuant thereto, and the Financing Commitments are in full force and 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 the Financing Commitments. No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or any of the Debt Commitment Letters; provided that Financing Commitments. Neither Parent nor Merger Sub is aware of any reason why the conditions set forth in the Financing Commitments would not making any representation regarding be satisfied on or before the effect Closing Date or such other earlier date as may be set forth in the Financing Commitments. Subject to the terms and conditions of the inaccuracy of Financing Commitments, and subject to the representations terms and warranties in Article 3. As of the date conditions of this Agreement, Parent does not have any reason to believe that any of the conditions to aggregate proceeds contemplated by the Financing will not be satisfied or that Commitments, together with the Financing will not be available to cash on hand of Parent or and Merger Sub on the date of Closing Date, will be sufficient to pay the Closing; provided that Parent is not making aggregate Per Share Merger Consideration and any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company other amounts required to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including paid in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member consummation of the Equity Provider Group has caused or induced any Person transactions contemplated hereby, and to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)pay all related fees and expenses.
Appears in 2 contracts
Financing. (a) Parent has delivered to the Company a true, complete and correct and complete copies, as copy of the executed Commitment Letter. The Commitment Letter has not been amended or modified prior to the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof Agreement and, as of the date hereof, the Equity Funding Letters commitments contained in the Commitment Letter have not been withdrawn, terminated or rescinded in any respect. Except for fee letters (the “Fee Letters”) and the Debt Commitment Letters (or, if applicable, any alternative debt commitment engagement letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and relating to the Knowledge Commitment Letter, complete copies of which have been provided to the Company with only fee amounts and certain economic terms (none of which would adversely affect the amount (other than in respect of upfront fees) or availability of the Financing if so exercised by the Financing Sources party thereto) redacted, as of the date hereof, there are no other agreements, side letters or arrangements to which Parent is a party relating to the Commitment Letter that could affect the availability of the Financing. As of the date hereof, the Commitment Letter constitutes the legally valid and binding obligation of Parent, and, to the knowledge of Parent, the other parties thereto, enforceable in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar Laws relating to or affecting the enforcement of creditors’ rights in general and by general principles of equity (regardless of whether enforcement is sought in equity or at Law)). Assuming As of the Financing date hereof, the Commitment Letter is funded in full force and effect and has not been withdrawn, rescinded or terminated or otherwise amended or modified in any respect, and no such amendment or modification is contemplated. Parent is not in breach of any of the terms or conditions set forth in the Commitment Letter, and assuming the accuracy of the representations and warranties set forth in Article 3 III and performance by the Company of its obligations under Section 5.2this Agreement, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As as of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach, default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making failure to satisfy any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3condition precedent set forth therein. As of the date hereof, no Financing Source has notified Parent of this Agreement, Parent does its intention to terminate the Commitment Letter or not have any reason to believe that any provide the Financing. There are no conditions precedent or other contingencies related to the funding of the conditions to full amount of the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making (including any representation regarding the inaccuracy of the representations and warranties “flex” provisions), other than as expressly set forth in Article 3, or the failure Commitment Letter and the Fee Letters. Parent and Sub will have as of the Company Effective Time, sufficient cash available, directly or through one or more Affiliates, to perform its obligations hereunder. The Financing Letters contain pay the aggregate Merger Consideration and Convertible Notes Consideration and all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent related fees and expenses on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations contemplated in this Section 4.5(b)Agreement. Parent and Sub’s obligations hereunder are not subject to a condition regarding Parent’s or Sub’s obtaining of funds to consummate the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Sealy Corp), Merger Agreement (Tempur Pedic International Inc)
Financing. (a) 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 of this Agreement, of (i) executed commitment letters Agreement (the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as a copy of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. fee letter referenced in the Commitment Letter (the “Debt Commitment LettersFee Letter” and, together with the Equity Funding LettersCommitment Letter, the “Financing Letters”) to provide(it being understood that the Fee Letter has been redacted in a customary manner). Pursuant to, and subject to the terms and conditions thereinof, debt financing in an aggregate amount the Commitment Letter, the lender thereunder (together with any other lenders who may be added pursuant to the terms thereof, the “Lenders”) has committed to lend the amounts set forth therein (being collectively referred to the provision of such funds as the “Debt Financing”set forth therein, and together with the Equity Financing collectively referred to as the “Financing”)) for the purposes set forth in such Commitment Letter. As of Neither the date hereof, none of Commitment Letter nor the Equity Funding Letters or Debt Commitment Letters Fee Letter has been amended amended, restated or modified, no such amendment otherwise modified or modification is contemplatedwaived prior to the execution and delivery of this Agreement, and the respective commitments contained in such letters the Commitment Letter have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or respect prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesAgreement. As of the date of this Agreement, no event has occurred whichthe Commitment Letter is in full force and effect and constitutes the legal, valid and binding obligation of each of the Borrower and, to the Knowledge of Parent, each of the other parties thereto, enforceable in accordance with or without noticeits terms against the Borrower and, lapse to the Knowledge of time or bothParent, would constitute a default or breach on each of the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding other parties thereto, subject to the effect of any applicable bankruptcy, insolvency (including all Laws related to fraudulent transfers), reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the inaccuracy effect of general principles of equity. There are no conditions precedent related to the funding of the representations full amount of the Financing pursuant to the Commitment Letter, other than as expressly set forth in the Commitment Letter. The net proceeds of the Financing will, in the aggregate and warranties 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 Article 3connection 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. As of the date of this Agreement, (i) no event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default) or result in a failure to satisfy a condition precedent, in each case, on the part of Parent or the Borrower or, to the Knowledge of Parent, any other party to the Commitment Letter, under the Commitment Letter, and (ii) Parent does not have any reason to believe that any of the conditions to the Financing 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 on the Closing Date. Parent has fully paid (or Merger Sub caused to be paid) all commitment fees or other fees to the extent required to be paid on or prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including this Agreement in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c)Financing. Neither Parent, Parent nor any Affiliate of Parent is a party to 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 nor acknowledge that their obligations under this Agreement are not contingent or conditioned in any member of the Equity Provider Group has caused or induced manner on obtaining any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)financing.
Appears in 2 contracts
Samples: Merger Agreement (Boulder Brands, Inc.), Merger Agreement (Pinnacle Foods Inc.)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) an executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) Investment Agreement to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) an executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) Letter to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereofof this Agreement, none of neither the Equity Funding Letters or Investment Agreement nor Debt Commitment Letters Letter has been amended or modified, no such amendment or modification is contemplated, modified and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. As of the date of this Agreement, each of the Investment Agreement and the Debt Commitment Letter, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent and Holdco, respectively, and to the knowledge of Parent, the other parties thereto, except as enforceability may be limited by applicable bankruptcy, insolvency, or Merger Sub similar laws affecting the enforcement of creditors’ rights generally or by equitable principles relating to enforceability. Parent has fully paid paid, or is paying, substantially contemporaneously with the execution and delivery of this Agreement, any and all commitment fees or other fees in connection with the Equity Funding Letters Investment Agreement and the Debt Commitment Letters Letter that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties theretothis Agreement. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the The net proceeds contemplated by the Equity Funding Letters and Debt Commitment Financing Letters will, together with Company cash, cash and cash equivalents available to Parent in the aggregate be sufficient for Merger Sub and to consummate the Surviving Corporation to pay Transactions upon the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt terms contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesexpenses associated therewith, including payment of all amounts under Article II of this Agreement. As of the date of this Agreement, Parent has no reason to believe that it or Holdco, as applicable, will be unable to satisfy any term or condition of closing to be satisfied by it contained in the Financing Letters. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub Holdco under any term or condition of the Equity Funding Financing Letters or that would, individually or in the Debt Commitment Lettersaggregate, permit the financial institutions party thereto to terminate, or to not make the initial funding of the facilities to be established thereunder upon satisfaction of all conditions thereto; provided that Parent is not none of Parent, Holdco, or Merger Sub are making any representation representations in this Section 4.14 regarding the effect of the inaccuracy of any of the representations and warranties in Article 3III. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties Except as set forth in Article 3the Financing Letters, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the there are no (i) conditions precedent to the respective obligation of the investors to fund the full amount of the Equity Financing; (ii) conditions precedent to the respective obligations of the parties thereunder lenders specified in the Debt Commitment Letter to make Financing available to Parent on fund the terms therein.
(b) Neither Parent, Merger Sub nor any member full amount of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group Debt Financing; or (iiiii) entered into an agreementcontractual contingencies under any agreements, arrangement side letters or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction arrangements relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date Financing to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither which either Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by ParentHoldco, Merger Sub or any member of their respective Affiliates is a party that would permit the lenders specified in the Debt Commitment Letter or the investors providing the Investment Agreement to reduce the total amount of the Equity Provider Group, would be Financing (other than retranching or reallocating the Debt Financing in a breach ofmanner that does not reduce the aggregate amount of the Debt Financing), or that would cause to be untrue, any materially and adversely affect the availability of the representations in this Section 4.5(b)Debt Financing or the Equity Financing.
Appears in 2 contracts
Samples: Merger Agreement (Citadel Broadcasting Corp), Merger Agreement (Cumulus Media Inc)
Financing. (a) Parent Buyer has delivered to the Company true, correct Seller true and complete copiesfully executed copies of the Commitment Letter, dated as of December 2, 2014, by and among Buyer, X.X. Xxxxxx Securities LLC, JPMorgan Chase Bank, N.A., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Bank of America, N.A., Xxxxx Fargo Securities LLC, Xxxxx Fargo Bank, N.A. and U.S. Bank National Association, including all exhibits, schedules, annexes and amendments to such letter in effect as of the date of this Agreement, of (i) executed commitment letters Agreement (the “Equity Funding LettersDebt Commitment Letter”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof, equity financing in each of the aggregate amount parties thereto (other than Buyer) have severally agreed to lend the amounts set forth therein (being collectively referred to the provision of such funds as set forth therein, the “Equity Financing”)) for the purposes set forth in such Debt Commitment Letter. The Debt Commitment Letter has not been amended, and (ii) executed commitment letters and redacted forms of fee letters, dated as of restated or otherwise modified or waived prior to the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or respect prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the this Agreement. The Debt Commitment Letters (orLetter is in full force and effect, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger SubBuyer is not, and to the Knowledge knowledge of ParentBuyer, the other parties thereto. Assuming none of the Financing is funded and assuming the accuracy Sources are, in default or breach of the representations terms of the Debt Commitment Letter. There are no conditions precedent or contingencies related to the funding of the full amount of the Financing other than as described in the Debt Commitment Letter. Subject to the terms and warranties set forth in Article 3 and performance by conditions of the Company of its obligations under Section 5.2Debt Commitment Letter, the net proceeds contemplated by from the Equity Funding Letters and Debt Commitment Letters willFinancing, together with Company cashother cash of Buyer on the Closing Date, will, in the aggregate aggregate, be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing satisfaction of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation all of the Transactions and to pay all related fees and expenses. As of the date of Buyer’s obligations under this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 2 contracts
Samples: Asset and Stock Purchase Agreement (Regal Beloit Corp), Asset and Stock Purchase Agreement (Regal Beloit Corp)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) the executed commitment letters securities purchase agreement from private investment funds affiliated with GTCR LLC as well as existing indirect owners of Parent (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider GroupPurchase Agreement”) to provideinvest, subject to the terms and conditions therein, equity financing cash in the aggregate amount amounts set forth therein (being collectively referred to as the “Equity Financing”), and (ii) an executed commitment letters letter and redacted forms of fee letters, dated as of the date of this Agreement, a Redacted Fee Letter from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Barclays Bank PLC (the “Debt Commitment LettersLetter” and, together with the Equity Funding LettersPurchase Agreement, collectively referred to as the “Financing Letters”), pursuant to which the lenders party thereto (collectively, the “Lenders”) to providehave committed, subject to the terms and conditions set forth therein, debt financing in an aggregate amount the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees (being collectively referred to as the “Debt Financing”, and together with the Equity Financing Financing, collectively referred to as the “Financing”). As None of the date hereof, none of the Equity Funding Letters or Debt Commitment Financing Letters has been amended or modifiedmodified prior to the date of this Agreement and as of the date of this Agreement, no such amendment or modification is contemplatedcontemplated (other than amendments or modifications that are permitted by Section 4.10), and as of the date of this Agreement, the respective obligations and commitments contained in such letters the Financing Letters have not been withdrawn or rescinded in any respect. Parent Except for fee letters and engagement letters with respect to the Financing, as of the date hereof, there are no side letters or agreements (whether written or oral) to which Parent, Merger Sub or any of their Affiliates is a party related to the funding or investing, as applicable, of the Financing that could affect the availability 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 prior to the date hereof. Parent has fully paid or caused to be fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Financing Letters that are payable on or prior to the date hereof andhereof, and as of the date hereof, the Equity Funding Financing Letters are in full force and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) effect and are the legal, valid, binding and enforceable obligations of CII, Parent and Merger Sub, and as the case may be, and, to the Knowledge of ParentParent or Merger Sub, each of the other parties thereto. Assuming There are no conditions precedent or other contingencies related to the Financing is funded and assuming the accuracy funding of the representations and warranties full amount of the Financing, other than as expressly set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Financing Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of CII, Parent or Merger Sub or, to the Knowledge of Parent or Merger Sub, any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing Letters. As of the date of this Agreementhereof, Parent does not have any has no reason to believe that any of the conditions to the Financing contemplated by the Financing Letters applicable to it or CII will not be satisfied or that satisfied. Assuming the Financing will not be is funded in accordance with the Financing Letters, Parent and Merger Sub, in the aggregate and together with the available to Parent or Merger Sub on the date cash and cash equivalents of the Closing; provided that Parent is not making Company, will have at and after the Closing funds sufficient to (i) pay the aggregate Merger Consideration, the aggregate Option Consideration and the aggregate Company RSU Consideration, (ii) finance the repayment or refinancing of debt contemplated by this Agreement or either Financing Letter, (iii) pay any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company all fees and expenses required to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither be paid by Parent, Merger Sub nor any member of and the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), Surviving Corporation in connection with the Merger or and the Financing, and (iv) satisfy all of the other Transactions, except, in the case payment obligations of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of and the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Surviving Corporation contemplated hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Financing. (a) Parent has delivered to the Company true, complete and correct and complete copies, as of the date of this Agreement, of copies of: (i) the executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersletter, dated as of the date hereof by and among Barclays Capital, the investment banking division of this AgreementBarclays Bank PLC, from 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., Citigroup Global Markets Inc.Royal Bank of Canada, JPMorgan RBC Capital Markets, UBS Loan Finance LLC, UBS Securities Inc. LLC and JPMorgan Chase Bank, N.A. Sub (the “Debt Commitment LettersFinancing 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 Equity Funding LettersDebt Financing Commitment, the “Financing LettersCommitments”) ), pursuant to providewhich, upon the terms and subject to the terms and conditions set forth therein, debt financing the Sponsor has committed to invest the cash amount in an aggregate amount Parent set forth therein in the Equity Financing Commitment (being collectively referred to as the “Debt Equity Financing”, ” and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). As None of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or modified prior to the date hereof 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, the Equity Funding Letters respective commitments contained in the Financing Commitments have not been amended, withdrawn, terminated or rescinded in any respect. As of the date hereof, there are no agreements, side letters or other arrangements to which Parent or Sub is a party relating to the funding or investing, as applicable, of the full amount of the Financing other than (x) as expressly set forth in the Financing 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 Letters (orthe “Fee Letter”), if applicable, any alternative debt commitment letters entered 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 Section 5.5(aan 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 validlegal, valid and binding and enforceable obligations of Parent and Merger Sub, and as applicable, and, to the Knowledge of Parent, the other parties theretothereto (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 Financing Commitments, and any related Fee Letter 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 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 hereof pursuant to the Financing Commitments. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 IV and performance by the Company of its obligations under Section 5.2hereunder, upon receipt of the net proceeds contemplated by the Equity Funding Letters Financing Commitments, Parent and Debt Commitment Letters will, together with Sub will have access as of the Merger Closing to sufficient cash funds (including available cash held by the Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation its Subsidiaries) and borrowing capacity to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt all amounts contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions by them and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its their respective obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 2 contracts
Samples: Merger Agreement (CD&R Associates VIII, Ltd.), Merger Agreement (Emergency Medical Services CORP)
Financing. (ai) Parent The Buyer will have available to it at the Closing all funds necessary for its payment of the Closing Merger Consideration in accordance with this Agreement and for all other actions necessary for Buyer to consummate the transactions contemplated in this Agreement. The Buyer understands that its obligations to consummate the transactions
(ii) Buyer has delivered to the Company a true, complete and correct and complete copies, as of the date of this Agreement, copy of (i) an executed debt commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, letter from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Barclays Bank PLC (the “Debt Commitment LettersLetter”) and (ii) each related fee letter (with customary redactions only with respect to fee amounts and the economic terms of the “market flex” andprovisions and nothing which would affect the amount or availability of the Financing), together in each case of the foregoing clauses (i) and (ii), in effect as of the date hereof (such Debt Commitment Letter and related fee letters, as they may be amended, modified or replaced in accordance with the Equity Funding LettersSection 4.9, collectively, the “Financing LettersCommitments”) ), which establish commitments to provide, subject to the terms and conditions therein, provide debt financing in an aggregate amount set forth therein and subject only to the terms and conditions set forth therein (being collectively referred to as such debt financing described in the “Debt Financing”Financing Commitments of such aggregate amount described therein, and together with the Equity Financing collectively referred to as the “Financing”). .
(iii) As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has Financing Commitments have been amended or modified, modified and no such amendment or modification to the Financing Commitments is contemplated; provided that, and for purposes of the foregoing, the existence or exercise of the “flex” provisions contained in one or more fee letters with respect to the Financing Commitments shall not constitute an amendment or modification of the Financing Commitments. The respective commitments contained in such letters the Financing Commitments have not been terminated, reduced, withdrawn or rescinded in any respectrespect and, other than any replacement of the Financing Commitments permitted pursuant to Section 4.9, no such termination, reduction, withdrawal or rescission is contemplated. Parent There are no side letters or Merger Sub other contracts or arrangements related to the funding of the Financing other than as expressly set forth in the Financing Commitments delivered to the Company pursuant to this Section 3.2(e). The Buyer has fully paid any and all commitment fees or other fees fees, amounts or expenses in connection with the Equity Funding Letters and the Debt Commitment Letters Financing Commitments that are payable on or prior to the date hereof and, as and the Buyer is unaware of any fact or occurrence existing on the date hereof that would reasonably be expected to cause any of the date hereofassumptions or any of the statements set forth in the Financing Commitments to be ineffective or inaccurate. The Financing Commitments are in full force and effect and the obligations set forth therein (including, for the avoidance of doubt, the Equity Funding Letters and obligation to provide the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)Financing upon satisfaction or waiver of the Limited Financing Conditions) are the legal, valid, binding and enforceable obligations of Parent and Merger Subthe Buyer and, and to the Knowledge Buyer’s Knowledge, each of Parent, the other parties thereto. Assuming There are no conditions precedent or other contingencies related to the funding of the full amount (or any portion) of the Financing, including any condition relating to the availability of the Financing is funded and assuming the accuracy of the representations and warranties pursuant to any “flex” provision, other than as expressly set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with Letter (such conditions, the consummation of the Transactions and to pay all related fees and expenses“Limited Financing Conditions”). As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would constitutes or could reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub the Buyer or, to the Buyer’s Knowledge, any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing Commitments. As of the date of this Agreement, Parent does not have any The Buyer 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 will not be made available to Parent the Buyer on or Merger Sub on prior to the Closing, and the Buyer is not aware of the existence of any current or anticipated fact or event as of the date hereof that would reasonably be expected to cause such conditions to funding not be satisfied on a timely basis or the Closing not to occur. The Buyer has not incurred any obligation, commitment, restriction or other liability of the Closing; provided that Parent any kind, and is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, contemplating or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates aware of any member of the Equity Provider Group or (ii) entered into an agreementobligation, arrangement or understanding with any bank or investment bank commitment, restriction or other potential provider liability of debt or equity financing on an exclusive basis (or otherwise on terms that any kind, in either case which could reasonably be expected to prevent (impair or otherwise hinderadversely affect the resources, funds or capabilities addressed by this Section 3.2(e) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in Financing Commitments and the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(bFinancing).
Appears in 2 contracts
Samples: Merger Agreement (Zayo Group LLC), Merger Agreement (Zayo Group LLC)
Financing. (a) Parent has delivered Schedule 5.10 of the Purchaser Disclosure Letter sets forth a true and complete copy of the executed Debt Commitment Letter (including all exhibits, annexes and other attachments thereto, but excluding any fee letter) pursuant to which, and subject to the Company trueterms and conditions of which, correct the lender parties thereto have committed to lend the amounts set forth therein to the Purchaser and certain of its Affiliates for the purpose of Debt Financing.
(b) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and has not been withdrawn or terminated, or otherwise amended, supplemented or modified in any respect. The Debt Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of the Purchaser and its Affiliates party thereto and, to the knowledge of the Purchaser, the other parties thereto, enforceable in accordance with its terms against each party thereto, subject to the Enforceability Exceptions. Except for fee letters relating to fees with respect to the Debt Financing (true and complete copiescopies of which have been provided to the Parent Seller, with fee amounts, pricing caps and certain economic terms of the market flex (none of which would adversely affect the amount or availability of the Debt Financing) redacted), as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners IIIthere are no other agreements, L.P. and TPG Partners Vside letters, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject or arrangements relating to the terms and conditions therein, equity financing in Debt Financing that could affect the aggregate amount availability of the Debt Financing other than as expressly set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties theretoLetter. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would constitute a failure of any condition of the Debt Commitment Letter or result in any portion of the Debt Financing being unavailable on the Closing Date or a default or breach on the part of Parent the Purchaser under any term or Merger Sub under the Equity Funding Letters or condition of the Debt Commitment Letters; provided Letter, and the Purchaser has no reason to believe that Parent is not making it will be unable to satisfy, on a timely basis, any representation regarding term or condition of closing to be satisfied by it contained in the effect of Debt Commitment Letter. The Purchaser has fully paid any and all commitment fees or other fees required by the inaccuracy of the representations and warranties in Article 3. As of Debt Commitment Letter to be paid on or before the date of this Agreement, Parent does not have any reason to believe that any . The aggregate proceeds from the Debt Financing constitute all of the conditions financing required for the Purchaser to consummate the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the transactions contemplated by this Agreement at Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain Debt Commitment Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the Debt Financing available to Parent the Purchaser on the terms therein.
(b) Neither Parent, Merger Sub nor any member . As of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates date of this Agreement, the Purchaser does not know of any member of the Equity Provider Group facts or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms circumstances that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to result in any third party in connection with a transaction relating to of the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), conditions set forth in the case Debt Commitment Letter not being satisfied. As of clauses (i) and (ii)the date hereof, in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant this Agreement must be in a form acceptable to any Lender, such Lender or Lenders have approved this Agreement.
(c) The Purchaser’s obligations under this Agreement are not subject to any conditions regarding the second sentence Purchaser’s, its Affiliates’, or any other Person’s (including, for the avoidance of Section 5.5(c). Neither Parentdoubt, Merger Sub nor the Sellers’ (or any member of their Affiliates’) ability to obtain financing for the consummation of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Contemplated Transactions.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Houghton Mifflin Harcourt Co), Stock and Asset Purchase Agreement (Scholastic Corp)
Financing. (a) Parent has delivered to the Company true, correct true and complete copies, as of the date of this Agreement, copies of (ia) a fully executed commitment letters letter (the “Equity Funding LettersDebt Financing Commitments”), pursuant to which the lender parties thereto (each a “Lender”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to providehave agreed, subject to the terms and conditions thereinthereof, equity financing in to provide or cause to be provided the aggregate amount debt amounts set forth therein (being collectively referred to as the “Debt Financing”) and (b) a fully executed equity commitment letter (the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersFinancing Commitment” and, together with the Equity Funding LettersDebt Financing Commitments, the “Financing LettersCommitments”), pursuant to which Lone Star Fund VII (U.S.), L.P. (the “Sponsor”) to providehas committed, subject to the terms and conditions thereinthereof, debt to provide equity financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Equity Financing”” and, and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). .
(b) As of the date hereofof this Agreement, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Financing Commitments have not been withdrawn withdrawn, rescinded or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesotherwise modified. As of the date of this Agreement, no event the Financing Commitments are in full force and effect and constitute the legal, valid and binding obligation of each of BI-LO Holding, Parent and Merger Sub (in the case of the Debt Financing Commitment) or Parent or Merger Sub (in the case of the Equity Financing Commitment) 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 similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity). As of the date hereof, none of BI-LO Holding, Parent or Merger Sub has occurred whichknowledge of any fact or occurrence existing on the date hereof that, with or without notice, lapse of time or both, would constitute reasonably be expected to (i) result in any of the conditions in the Financing Commitments not being satisfied or (ii) otherwise result in the Financing not being available on a default or breach on timely basis in order to consummate the part transactions contemplated by this Agreement. As of the date hereof, neither the Sponsor nor any Lender has notified BI-LO Holding, Parent or Merger Sub of its intention to terminate either of the Financing Commitments or not to provide the Financing.
(c) Except for the Financing Commitments and fee letter (a complete copy of which has been provided to the Company, with only fee amounts and certain economic terms of the market flex provisions redacted (the “Fee Letter”)), as of the date hereof there are no side letters or other agreements to which BI-LO Holding, Parent or Merger Sub is a party related to the Financing. There are no conditions precedent related to the funding of the full amount of the Financing other than as set forth in the Financing Commitments and the Fee Letter (the “Disclosed Conditions”). Parent has advised the Company of the maximum total amount of fees (including original issue discount) and expenses payable by Parent and Merger Sub under the Equity Funding Letters Debt Financing. No Lender has any right to impose, and none of the Sponsor, any Lender, BI-LO Holding, Parent or Merger Sub has any obligation to accept, any condition precedent to such funding other than the Debt Commitment Letters; provided that Parent is not making Disclosed Conditions nor, except as set forth in the Financing Commitments and the Fee Letter, any representation regarding reduction to the aggregate amount available under the Financing Commitments on the Closing Date (nor any term or condition which would have the effect of reducing the inaccuracy of aggregate amount available under the representations and warranties in Article 3Financing Commitments on the Closing Date). As of the date of this Agreement, assuming compliance by the Company with the provisions of Section 5.11 hereof, none of BI-LO Holding, Parent does not have or Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis any of the conditions to the Financing will not be satisfied funding of the full amount of the Financing, or that the Financing will not be available to BI-LO Holding, Parent or Merger Sub on the date of Closing Date.
(d) Assuming the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all satisfaction of the conditions precedent to Parent’s and Merger Sub’s obligation to consummate the obligations Merger, the aggregate proceeds contemplated by the Financing Commitments, if funded in accordance with the Financing Commitments, together with other cash of BI-LO Holding, Parent, Merger Sub, the parties thereunder to make Financing available to Parent Company and the Company’s Subsidiaries on the Closing Date, will be sufficient for Parent and Merger Sub to consummate the Merger upon the terms thereincontemplated by this Agreement, to refinance the Second Amended and Restated Credit Agreement, dated March 18, 2011, by and among the Company, the lenders party thereto, and Xxxxx Fargo Bank, National Association, as administrative agent, to refinance the existing ABL Credit Agreement, dated February 3, 2011, by and among BI-LO Holding, the lenders, other parties party thereto and Deutsche Bank Trust Company Americas, as administrative agent and collateral agent (collectively, the “Refinancing”), and to pay all related fees and expenses.
(be) Neither BI-LO Holding, Parent or Merger Sub has paid in full any and all commitment or other fees required by the Financing Commitments that are due on or before the date hereof, and will pay, after the date hereof, all such commitments and fees as they become due. It is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing or any alternative financing.
(f) None of BI-LO Holding, Parent, Merger Sub nor any member of Sub, the Equity Provider Group has Sponsor or their respective Affiliates have (i) retained any financial advisor on an a basis exclusive basis other than Affiliates to Parent, Merger Sub or the Sponsor (or any or all of any member of the Equity Provider Group them on a joint basis) or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to would prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal))Subsidiaries, in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken transactions contemplated by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Southeastern Grocers, LLC), Merger Agreement (Winn Dixie Stores Inc)
Financing. (a) Parent has delivered to the Company true, correct and complete copiesfully executed copies of the commitment letter, dated as of the date hereof, among Parent, Bank of America, N.A. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, including all exhibits, schedules, annexes and amendments to such agreement in effect as of the date of this Agreement, and excerpts of those portions of each fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions (iexcluding provisions related solely to fees) executed commitment letters regarding the terms and conditions of the financing to be provided thereby (collectively, the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners III), L.P. pursuant to which and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof each of the parties thereto (other than Parent), equity have severally agreed and committed to provide the debt financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”). The Commitment Letter has not been amended, restated or otherwise modified or waived prior to the date of this Agreement and (ii) executed commitment letters and redacted forms the respective commitments contained in the Commitment Letter have not been withdrawn, modified or rescinded in any respect prior to the date of fee letters, dated as this Agreement. As of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Fundingthe Commitment Letter is in full force and effect and constitutes the legal, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. valid and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” binding obligation of each of Parent and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto, subject to the Bankruptcy and Equity Exception. Assuming There are no conditions precedent, “flex” provisions or other substantive provisions regarding the terms and conditions of the Financing is funded and assuming the accuracy of the representations and warranties other than as expressly set forth in Article 3 the Commitment Letter. Subject to the terms and performance by conditions of the Company of its obligations under Section 5.2Commitment Letter, the net proceeds contemplated by of the Equity Funding Letters and Debt Commitment Letters willFinancing, together with Company cashother financial resources of Parent including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent on the Closing Date, will, in the aggregate aggregate, be sufficient for Merger Sub and the Surviving Corporation to pay satisfaction of all of Parent’s obligations under this Agreement, including the aggregate Merger Consideration, Option Consideration and RSU Consideration (and payment of any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid pursuant to Article II, and the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the consummation Merger (including all indebtedness of the Transactions Company and its Subsidiaries required to pay be repaid, redeemed, retired, canceled, terminated or otherwise satisfied in connection with the Merger) (all related such debt, the “Required Refinancing Indebtedness”) and of all fees and expensesexpenses reasonably expected to be incurred in connection herewith. As of the date of this Agreement, (i) no event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would constitute a default or breach default), in each case, on the part of Parent or Merger Sub or, to the Knowledge of Parent, any other party to the Commitment Letter, under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations Letter, and warranties in Article 3. As of the date of this Agreement, (ii) Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing or any other funds necessary for the satisfaction of all of Parent’s obligations under this Agreement and the payment of the Required Refinancing Indebtedness and of all fees and expenses reasonably expected to be incurred in connection herewith will not be available to Parent or Merger Sub on the Closing Date. Parent has fully paid all fees required to be paid prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Silgan Holdings Inc), Merger Agreement (Graham Packaging Co Inc.)
Financing. (a) Parent IDB Buyer has delivered to the Company Seller true, correct and complete copiescopies of the fully executed (i) debt commitment letter between Jefferies Finance LLC (collectively with the other lenders party thereto on the date hereof, the “Lenders”), and GFI Holding Co Inc., a Delaware corporation and indirect parent of IDB Buyer, dated as of the date hereof, including all exhibits, schedules, term sheets, annexes and amendments thereto, all in effect as of the date of this Agreement, of (i) executed commitment letters Agreement (the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners IIIand (ii) fee letter referenced in the Commitment Letter (the “Fee Letter”) in effect as of the date of this Agreement (the Commitment Letter and such Fee Letter, L.P. and TPG Partners Vcollectively, L.P. (eachthe “Debt Commitment Letter”), an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof, equity financing in the aggregate amount Lenders have committed to lend the amounts set forth therein to IDB Buyer for the purpose of funding the transactions contemplated by this Agreement, to pay expenses to be paid by IDB Buyer relating to the Transactions and for the other purposes set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”); provided, however, that solely in the case of the Fee Letter, true, correct and together with complete copies have been delivered to Seller redacted in a manner that is usual and customary for transactions of this type.
(b) The Debt Commitment Letter, in the Equity Financing collectively referred form provided to as Seller by IDB Buyer, is, or in the “Financing”). As case of a Debt Commitment Letter entered into after the date of this Agreement (but if entered into after the date hereof, none only to the extent entered into in compliance with Section 5.16(d)) will be, in full force and effect and is, or in the case of the Equity Funding Letters or a Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to Letter entered into after the date hereof andof this Agreement will be, as of the date hereoflegal, the Equity Funding Letters valid and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent IDB Buyer and Merger Subits Affiliates party thereto, and to the Knowledge of ParentIDB Buyer, each of the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth , enforceable in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together accordance with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensestheir respective terms. As of the date of this Agreement, no Debt Commitment Letter or any commitment thereunder has been withdrawn, terminated, repudiated, rescinded, waived, amended, restated, supplemented or modified in any respect, orally or in writing, and as of the date of this Agreement no such withdrawal, termination, repudiation, rescission, waiver, amendment, restatement, supplement or modification is contemplated by IDB Buyer or any of its Affiliates, or to the Knowledge of IDB Buyer, any other counterparty thereto.
(c) As of the date of this Agreement, neither IDB Buyer nor any of its Affiliates nor, to the Knowledge of IDB Buyer, 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 Debt Commitment Letter, and to the Knowledge of IDB Buyer no 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 under the Debt Commitment Letter on the part of Parent IDB Buyer or Merger Sub under the Equity Funding Letters or any other party to the Debt Commitment Letters; provided that Parent is not making Letter, (ii) constitute or result in a failure to satisfy a condition precedent or other contingency set forth in the Debt Commitment Letter, (iii) make any representation regarding the effect of the inaccuracy assumptions or any of the representations and warranties statements set forth in Article 3the Debt Commitment Letter inaccurate in any material respect or (iv) otherwise result in any portion of the Debt Financing not being available. As of the date of this Agreement, Parent does IDB Buyer has not have received any reason notice or other communication from any party to believe the Debt Commitment Letter with respect to (i) any actual or potential breach or default under the Debt Commitment Letter on the part of IDB Buyer or any other party to the Debt Commitment Letter, (ii) any actual or potential failure to satisfy any condition precedent or other contingency set forth in the Debt Commitment Letter or (iii) any intention of such party to terminate the Debt Commitment Letter or to not provide all or any portion of the Debt Financing. To the Knowledge of IDB Buyer (both before and after giving effect to any “market flex” provisions contained in the Debt Commitment Letter): (x) IDB Buyer will be able to satisfy on a timely basis each term and condition relating to the closing or funding of the Debt Financing; (y) no fact, occurrence, circumstance or condition exists that would reasonably be expected to (1) cause the Debt Commitment Letter to terminate, to be withdrawn, modified, repudiated or rescinded or to be or become ineffective, (2) cause any of the terms or conditions relating to the closing or funding of any portion of the Debt Financing will not to be satisfied met or that complied with or (3) otherwise cause the Financing will full amount (or any portion) of the funds contemplated to be available under the Debt Commitment Letter to not be available to Parent IDB Buyer on a timely basis (and in any event as of the Closing); and (z) no potential impediment exists to the funding of any of the payment obligations of IDB Buyer under this Agreement. IDB Buyer has fully paid any and all commitment fees or Merger Sub other fees or deposits required by the Debt Commitment Letter to be paid on or before the date of this Agreement, and IDB Buyer will pay when due all other commitment or other fees arising under the Debt Commitment Letter as and when they become payable.
(d) The aggregate net proceeds from the Debt Financing (both before and after giving effect to any “market flex” provisions contained in the Debt Commitment Letter) constitute all of the financing required for the consummation of the transactions contemplated by this Agreement and are sufficient in amount to provide IDB Buyer with the funds necessary to consummate the transactions contemplated hereby and to satisfy its obligations under this Agreement, including to pay the Purchase Price, and to pay all fees, costs and expenses to be paid by IDB Buyer related to the transactions contemplated by this Agreement, including such fees and expenses relating to the Debt Financing.
(e) There are no, and there will not be any, conditions precedent or other contingencies related to the obligation of any party to the Debt Commitment Letter to fund the full amount (or any portion) of the Debt Financing, including any condition or other contingency relating to the availability of the Debt Financing pursuant to any “market flex” provisions, other than as expressly set forth in the Debt Commitment Letter as in effect on the date hereof (the “Disclosed Conditions”). Other than the Disclosed Conditions, no Financing Source or other Person has any right to impose, and IDB Buyer has no obligation to accept, any condition precedent to any funding of the Closing; provided Debt Financing nor any reduction to the aggregate amount available under the Debt Commitment Letter (nor any term or condition which could have the effect of reducing the aggregate amount available under the Debt Commitment Letter). There are no side letters and (except for the Debt Commitment Letter) there are no agreements, contracts, arrangements or understandings, whether written or oral, with any Lender, Financing Source or other Person relating to the Debt Financing or the Debt Commitment Letter (including any that Parent is not making any representation regarding could affect the inaccuracy availability of the representations and warranties Debt Financing). Other than as set forth in Article 3the Debt Commitment Letter delivered to Seller prior to the date hereof, there are no conditions precedent relating to the funding of the full amount of the Debt Financing that would, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal))to, in the case of clauses (i) and impair the validity of the Debt Commitment Letter, (ii)) reduce the aggregate amount of the Debt Financing, in connection with (iii) prevent or delay the Merger consummation of the transactions contemplated hereby, (iv) cause the Debt Commitment Letter to be ineffective, or the other Transactions, except, (v) otherwise result in the case of clause (ii), for such actions taken after Debt Financing not being available on a timely basis in order to consummate the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)transactions contemplated hereby.
Appears in 2 contracts
Samples: Purchase Agreement (Cme Group Inc.), Purchase Agreement (GFI Group Inc.)
Financing. (a) Assuming the Financing has been received, at or prior to the time at which payment for validly tendered Shares is required to be made hereunder, Parent and Merger Sub shall have available cash resources and/or financing in an aggregate amount sufficient to enable Parent and Merger Sub to consummate the Transactions. Parent has delivered to the Company true, correct an accurate and complete copiescopy of a fully executed debt commitment letter (together with all annexes, as of schedules and exhibits thereto) from the date of this Agreementfinancial institutions party thereto (collectively, of (i) executed commitment letters (the “Equity Funding LettersLenders”) from Silver Lake Partners III(such letter, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider GroupCommitment Letter”) ), pursuant to providethe terms, but subject to the terms and conditions expressly set forth therein, equity of which certain of the Lenders have committed to provide Parent and Merger Sub with debt financing in the aggregate amount amounts set forth therein for purposes of partially financing the Transactions (being collectively referred to as the “Equity Financing”)such debt financing, and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”). Parent and Merger Sub acknowledge that their obligations under this Agreement, including their obligations to consummate the Transactions, are not contingent or conditioned in any manner on obtaining any funds or financing.
(b) The Commitment Letter is, and together each definitive agreement with respect to the Equity Debt Financing collectively (which definitive agreements are referred to collectively in this Agreement as the “FinancingDefinitive Financing Agreements”). As of ) entered into after the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or this Agreement but prior to the date hereof andAcceptance Time (if any), as of the date hereofwill be, the Equity Funding Letters and the Debt Commitment Letters (orin each case, if applicablea legal, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations obligation of Parent (to the extent party thereto) and Merger SubSub (to the extent party thereto) and, and to the Knowledge of Parent, the other parties theretothereto in accordance with their respective terms and subject to: (i) the respective conditions expressly set forth therein; (ii) any Law of general application relating to bankruptcy, insolvency and the relief of debtors; and (iii) rules of Law governing specific performance, injunctive relief and other equitable remedies. Assuming As of the Financing is funded date of this Agreement, the Commitment Letter has not been withdrawn, modified, terminated or rescinded in any respect, amended, restated or otherwise modified or waived. There are no conditions precedent or contingencies related to the funding of the full amount of the Debt Financing, other than as expressly set forth in or expressly contemplated by the Commitment Letter and this Agreement, and, assuming the truth and accuracy of the Company’s representations and warranties set forth in Article 3 and performance compliance by the Company of with its obligations under Section 5.2covenants and agreements herein, Parent does not have any reason to believe that the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation conditions to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts Financing will not be satisfied or that the Debt Financing will not be available to Parent at or prior to the time at which payment for validly tendered Shares is required to be paid in connection with the consummation made hereunder. As of the Transactions date hereof, there are no, and there are not contemplated to pay all be any, side letters or other agreements, contracts or arrangements related fees to the funding or investing, as applicable, of the full amount of the Debt Financing, other than any customary engagement letters, fee letters and expenses. non-disclosure agreements that do not impact the conditionality for the Debt Financing to occur or amount of the Debt Financing.
(c) As of the date of this Agreement, no event has occurred which, which (i) would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would constitute a default or breach default), in each case, on the part of Parent or Merger Sub under the Equity Funding Letters Commitment Letter or (ii) would, individually or in the Debt Commitment Letters; provided that Parent is aggregate, permit the Lenders to terminate, or to not making any representation regarding immediately fund the effect facilities to be established thereunder upon satisfaction of the inaccuracy of the representations and warranties in Article 3all conditions thereto. As of the date of this Agreement, neither Parent does not have nor Merger Sub is aware of any reason to believe that material inaccuracies in any of the conditions to the Financing will not be satisfied representations or that the Financing will not be available to warranties (if any) of Parent or Merger Sub on in the Commitment Letter. To the extent required, Parent has fully paid all commitment fees or other fees required to be paid prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Commitment Letter.
Appears in 2 contracts
Samples: Merger Agreement (Mitel Networks Corp), Merger Agreement (Mavenir Systems Inc)
Financing. (a) Parent has delivered to the Company true, correct a true and complete copiescopy, as of the date of this Agreement, of (i) an executed commitment letters letter to provide debt financing to Parent (the “Equity Funding Letters”or Merger Sub) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, in an “Equity Provider”, and collectively the “Equity Provider Group”) to provideaggregate amount set forth therein, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein thereof (being collectively referred to as the “Equity FinancingFinancing Commitment”), and (ii) executed commitment letters and redacted forms of fee letters, dated as a portion of the date proceeds of which shall be used to consummate the Merger and the other transactions contemplated by this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Agreement (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereofof this Agreement, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitment, in the form delivered to the Company, (i) has not been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. , (ii) represents the entire agreement between the parties, and (iii) is in full force and effect and is a legal, valid and binding obligation of Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming As of the Financing is funded and assuming date of this Agreement, subject to the accuracy of the representations and warranties of the Company set forth in Article 3 Section 4.01, 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 contained in the Financing Commitment. Subject to the accuracy of the representations and performance by warranties of the Company set forth in Section 4.01(c), the proceeds from the Financing, when funded in accordance with the Financing Commitment and together with available funds at the Company, are sufficient for the satisfaction of its all of Parent’s obligations under Section 5.2this Agreement, including the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay payment of the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As Notwithstanding anything in this Agreement to the contrary, the Financing Commitment may be superseded at the option of Parent after the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions Agreement but prior to the Effective Time by a New Financing will not Commitment in accordance with Section 6.07. In such event, the term “Financing Commitment” as used in this Agreement shall be satisfied or that the deemed to include a New Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date Commitment to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations then in this Section 4.5(b)effect.
Appears in 2 contracts
Samples: Merger Agreement (Hirsch International Corp), Merger Agreement (Hirsch International Corp)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as copies of the date of this Agreement, of (i) executed commitment letters letter from Xxxxxx Xxxxxxx Senior Funding, Inc. including any related fee letter in redacted form (the “Equity Funding LettersDebt Commitment Letter”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof, equity financing in the aggregate amount lender party or parties thereto have committed to lend the amounts set forth therein (being collectively referred on the terms set forth therein to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior FundingConsolidated Communications, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. a Subsidiary of Parent (“CCI” ) for the “Debt Commitment Letters” and, together with purpose of funding the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein transactions contemplated by this Agreement (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). .
(b) As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Letter is in full force and effect and has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded terminated or otherwise amended, supplemented or modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the The Debt Commitment Letters that are payable on or prior Letter, in the form so delivered, is a legal, valid and binding obligation of CCI and, to the date hereof and, knowledge of Parent as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other party or parties thereto. Assuming There are no side letters or other agreements, contracts or arrangements (except for customary fee letters and engagement letters, complete copies of which have been provided to the Financing is funded Company, with only the fee amounts and assuming certain other terms (none of which would adversely affect the accuracy amount or availability of the representations Debt Financing) redacted) relating to the Debt Financing between Parent, Merger Subs and warranties set forth in Article 3 and performance by CCI, on the Company of its obligations under Section 5.2one hand, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment provider or refinancing providers of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any Financing, on the other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenseshand. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent CCI under any term, or Merger Sub under the Equity Funding Letters or a failure of any condition, of the Debt Commitment Letters; provided that Parent is not making any representation regarding Letter. Assuming the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties set forth in Article 3Section 4 and compliance by the Company with its covenants and agreements hereunder, or the failure as of the date of this Agreement neither Parent nor Merger Subs has reason to believe that CCI would be unable to satisfy on a timely basis any term or condition of the Debt Commitment Letter required to be satisfied by it. Parent, CCI and/or Merger Subs have fully paid any and all commitment fees or other fees required by the Debt Commitment Letter to be paid on or before the date of this Agreement. Assuming the accuracy of the representations and warranties set forth in Section 4 and compliance by the Company of its covenants and agreement hereunder and subject to perform its obligations hereunder. The Financing Letters contain the satisfaction of the conditions of the Debt Financing, the aggregate proceeds from the Debt Financing, together with the cash and cash equivalents available to the Company (not needed for other purposes), are sufficient to fund all of the amounts required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and each Merger Sub’s obligations under this Agreement, including the payment of the Merger Consideration, the Equity Award Consideration and the payment of all associated costs and expenses of the Mergers (including any repayment or refinancing of indebtedness of Parent, Merger Subs or the Company required in connection therewith). There are no conditions precedent or other contingencies related to the obligations funding or investing, as applicable, of the parties thereunder to make Financing available to Parent on full amount of the terms thereinDebt Financing, other than as expressly set forth in or contemplated by the Debt Commitment Letter.
(bc) Neither Parent, Merger Sub nor any member As of the Equity Provider Group date hereof, Parent has (i) retained any financial advisor on an exclusive basis other than Affiliates no knowledge of any member direct or indirect limitation or other restriction on the ability of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or lender parties to the Debt Commitment Letter to provide financing for other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member purchasers of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Company.
Appears in 2 contracts
Samples: Merger Agreement (Consolidated Communications Holdings, Inc.), Merger Agreement (Surewest Communications)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) executed received a commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Agreement (the “Debt Commitment Letters” andFinancing Letter”) from Banc of America Securities LLC, together with Banc of America Bridge LLC, Bank of America, N.A. and the Equity Funding LettersBank of Nova Scotia (collectively, the “Lenders”), relating to the financing (including all exhibits, schedules and amendments to the Financing LettersLetter in effect as of the date of this Agreement) required to consummate the Merger and the other Transactions on the terms contemplated by this Agreement, to refinance certain existing indebtedness of the Parent and the Company and to pay related fees and expenses, which Financing Letter includes terms and conditions for (i) a $1.950 billion senior secured credit facility (the “Senior Facility”) and (ii) a $750.0 million unsecured “bridge” loan facility (the “Bridge Facility”) (or Senior Notes as defined in the Financing Letter (“Senior Notes”) in lieu thereof). The Lenders have committed to provide, provide and arrange the financing contemplated by the Financing Letter upon and subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein the Financing Letter (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As Parent has provided the Company with true, complete and correct copies of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesLetter. As of the date of this Agreement, (i) the Financing Letter is in full force and effect, is a valid, binding and enforceable obligation of the Parent, and to the Knowledge of the Parent, the other parties thereto, and has not been withdrawn or terminated or otherwise amended or modified in any respect without the prior written consent of the Company and no such amendment or modification is contemplated by Parent or Sub or, to Parent’s Knowledge, any other party thereto, and (ii) neither Parent nor Sub is in breach of any of the terms or conditions set forth therein and no event has occurred which, with or without notice, lapse of time or both, would could reasonably be expected to constitute a default breach or breach failure to satisfy a condition precedent set forth in the Financing Letter. Parent and Sub have paid any and all commitment fees or other fees in connection with the Financing Letter that are payable on or prior to the part date of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect this Agreement.
(b) As of the inaccuracy date of this Agreement, subject to the accuracy of the representations and warranties of the Company set forth in Article 3III, and the satisfaction of the conditions set forth in Sections 7.01 and 7.02, neither Parent nor Sub has any reason to believe that it will be unable to satisfy the conditions of closing to be satisfied by it set forth in the Financing Letter on the Closing Date. Assuming the funding of the Financing in accordance with the Financing Letter, the proceeds from such Financing constitute all of the financing required for the consummation of the Merger and the other Transactions, and, together with the Stock Consideration, Parent’s cash on hand, and cash on hand from operations of the Company, are sufficient for the satisfaction of all of Parent’s and Sub’s obligations under this Agreement, including the payment of the Merger Consideration, any other amounts required to be paid in connection with the consummation of the Merger and the other Transactions and to pay all related fees and expenses (including any repayment or refinancing of debt contemplated by this Agreement or the Financing Letter). There are no conditions precedent (i) to the availability of the “flex” provisions set forth in the Financing Letter or (ii) other than as expressly set forth in the Financing Letter, to the Lenders’ obligation to fund that portion of the Financing required for the consummation of the Merger and other Transactions. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions there are no side letters or other agreements, arrangements or understandings (written or oral) relating to the Financing will not be satisfied or that (other than fee letters and an engagement letter with respect to the Financing will not be available Senior Notes with the providers of the Financing) to which Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be their Affiliates is a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)party.
Appears in 2 contracts
Samples: Merger Agreement (Hercules Inc), Merger Agreement (Ashland Inc.)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreementhereof, of (i) executed commitment letters and Rollover Commitments (collectively, the “Equity Funding LettersBuyer Group Commitments”) from Silver Lake Partners III), L.P. pursuant to which certain Buyer Group Parties have agreed to provide equity financing to Parent and TPG Partners Vdebt financing to a wholly owned subsidiary of Parent in connection with the Merger (collectively, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Buyer Group Financing”), and (ii) executed debt commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. related term sheets (the “Debt Commitment Letters” and, and together with the Equity Funding LettersBuyer Group Commitments, the “Financing LettersCommitments”) ), pursuant to providewhich, and subject to the terms and conditions thereof, the lenders specified therein have committed to provide Parent or the Surviving Corporation with loans in the amounts described therein, debt financing in an aggregate amount set forth the proceeds of which will be used as described therein to consummate the Merger and the other transactions contemplated hereby (being collectively referred to as the “Debt Financing”, ” and together with the Equity Financing collectively referred to as Buyer Group Financing, the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, Financing Commitments are in full force and the respective commitments contained in such letters effect and have not been withdrawn or rescinded 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 Equity Funding Letters and the Debt Commitment Letters Financing Commitments that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters Financing Commitments (or, if applicable, any alternative debt commitment letters New Financing Commitments entered into pursuant to Section 5.5(a)5.9) are the valid, binding and enforceable obligations of Parent and Merger SubSub and any Buyer Group Party a party thereto, as applicable, and to the Knowledge of Parent, the other parties thereto. Assuming The Financing, subject to the terms and conditions of the Financing is funded Commitments, and assuming cash on hand in the accuracy Company constitute all of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient financing required for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions Merger and to pay all related fees the other transactions contemplated hereby, and expenses. As are sufficient for the payment of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on aggregate Merger Consideration and the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3aggregate Option Consideration. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent. Notwithstanding anything in this Agreement to the contrary, the Debt Commitment Letters may be superseded at the option of Parent or Merger Sub nor any member after the date of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating this Agreement but prior to the Company or its Subsidiaries (including Effective Time by New Financing Commitments, subject to, and in connection accordance with Section 5.9. In such event, the making of any Takeover Proposal)), in term “Financing Commitments” as used herein shall be deemed to include the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date New Financing Commitments to the extent permitted pursuant to then in effect and the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would term “Financing” shall be a breach of, or would cause deemed to be untrue, any of the representations in this Section 4.5(b)similarly modified.
Appears in 2 contracts
Samples: Merger Agreement (Goldman Sachs Group Inc/), Merger Agreement (Waste Industries Usa Inc)
Financing. (a) Parent TruGreen Holdings has delivered to the Company trueScotts complete, true and correct and complete copies, as of the date of this Agreement, of copies of: (i) the executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. hereof by and among JPMorgan Chase Bank, N.A. 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 Commitment Letters” and, together with the Equity Funding Letters, the “Financing LettersCommitment”) and any related exhibits, schedules, annexes and supplements, pursuant to providewhich, upon the terms and subject to the terms and conditions set forth therein, debt financing in an aggregate amount the Lenders have agreed to lend the amounts set forth therein to TruGreen LP (being collectively referred to as the “Debt Financing”, ); and together with (ii) the Equity Financing collectively referred to as related executed fee letter (the “FinancingFee Letter”). As of The Debt Financing Commitment and the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has Fee Letter have not been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or modified prior to the date hereof 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, the Equity Funding Letters and respective commitments contained in the Debt Financing Commitment Letters (orhave not been withdrawn, if applicableterminated or rescinded in any respect, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the validand, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of ParentTruGreen Holdings, the no such withdrawal, rescission, amendment or modification is contemplated (except for replacements as permitted by Section 5.10(a)). There are no other parties thereto. Assuming the Financing agreements, side letters or arrangements to which TruGreen LP is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation a party relating to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesFinancing Commitment. As of the date hereof, the Debt Financing Commitment is in full force and effect and constitutes the legal, valid and binding obligation of this AgreementTruGreen LP and, to the Knowledge of TruGreen Holdings, 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 by general 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 the 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, TruGreen LP is not in breach of any of the terms or conditions set forth in the Debt Financing Commitment and no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default (or breach on the part with notice or lapse of Parent time or Merger Sub both would constitute a default) by TruGreen LP under the Equity Funding Letters or Debt Financing Commitment, or, to the Knowledge of TruGreen Holdings, the other parties to the Debt Commitment Letters; provided that Parent is not making any representation regarding Financing Commitment. 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 effect of date hereof pursuant to the inaccuracy of the representations and warranties in Article 3Debt Financing Commitment. As of the date hereof, none of this Agreement, Parent does not have TruGreen Holdings or any of its Affiliates has any reason to believe that any the full amount of the conditions to the Financing will not be satisfied or that the Debt Financing will not be available to Parent or Merger Sub on the date of at the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Samples: Contribution and Distribution Agreement (Scotts Miracle-Gro Co)
Financing. Parent shall have (aand shall cause Parent Assignee and Merger Subsidiary to have) at the Effective Time available sufficient cash, or other sources of immediately available funds, to make payment of all of the amounts required to be provided by Parent, Parent Assignee and Merger Subsidiary for the consummation of the transactions contemplated hereby, and for the satisfaction of all of Parent’s, Parent Assignee’s and Merger Subsidiary’s obligations under this Agreement, including the payment of the Merger Consideration and the payment of all associated costs and expenses of the Merger (including any repayment or refinancing of indebtedness of Parent, Parent Assignee, Merger Subsidiary or the Company required in connection therewith). Parent has delivered to the Company a true, correct and complete copies, as copy of the date executed Loan Commitment Letter, dated April 8, 2014, from Bank of this Agreement, of (i) executed commitment letters China Shanghai Branch (the “Equity Funding LettersBank of China Commitment Letter”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof, equity financing in the aggregate amount lender parties thereto have committed to lend the amounts set forth therein (being collectively referred to as Parent for the “Equity Financing”), and (ii) executed commitment letters and redacted forms purpose of fee letters, dated as of funding the date of transactions contemplated by this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Agreement (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “FinancingBank of China Commitment”). As of the date hereof, none the Bank of China Commitment Letter is in full force and effect pursuant to its terms and, to the Equity Funding Letters or Debt Commitment Letters knowledge of Parent, has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded terminated or otherwise amended, supplemented or modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt The Bank of China Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cashLetter, in the aggregate be sufficient for Merger Sub form so delivered, is a legal, valid and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation binding obligation of the Transactions parties thereto, subject to the terms and conditions thereof. There are no side letters or other agreements, contracts or arrangements with Parent, Parent Assignee or Merger Subsidiary as a party that would result in changes to pay all related fees and expenses. As the terms of the date Bank of this AgreementChina Commitment Letter. To the knowledge of Parent, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent, Parent Assignee or Merger Sub Subsidiary under any term, or failure of any condition, of the Equity Funding Letters Bank of China Commitment Letter or otherwise result in any portion of the Debt Bank of China Commitment Letters; provided contemplated thereby to be unavailable, in each case subject to the terms thereof. Parent has no reason to believe that Parent is not making is, or that Parent Assignee or Merger Subsidiary when formed will be, unable to satisfy on a timely basis any representation regarding the effect term or condition of the inaccuracy Bank of China Commitment Letter, to the representations and warranties in Article 3extent such term or condition is within Parent’s, Parent Assignee’s or Merger Subsidiary’s control, as the case may be. As The Bank of China Commitment Letter does not require Parent, Parent Assignee and/or Merger Subsidiary to pay any commitment fees or other fees to the Bank of China on or before the date of this Agreement. There are no conditions precedent or other contingencies related to the funding, Parent does not have any reason to believe that any as applicable, of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date full amount of the Closing; provided that Parent is not making any representation regarding the inaccuracy Bank of the representations and warranties China Commitment, other than as set forth in Article 3, or contemplated by the failure Bank of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinChina Commitment Letter.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct true and complete copies, including all exhibits and schedules thereto, of (a) the executed commitment letter, dated as of the date of this Agreement, of (i) executed commitment letters hereof (the “Equity Funding LettersLetter”) ), from Silver Lake Partners IIIthe Guarantors, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) Guarantors have agreed to providemake equity investments in the Parent, subject to the terms and conditions therein, equity financing in cash in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (iib) the executed commitment letters letter and redacted forms of fee lettersRedacted Fee Letter, dated as of the date of this Agreementhereof (collectively, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersLetter” and, together with the Equity Funding LettersLetter, the “Financing Letters”) ), from MidCap Financial Trust, pursuant to which MidCap Financial Trust has agreed to provide, subject to the terms and conditions therein, debt financing in an aggregate amount the amounts set forth therein (being collectively referred to as the “Debt Financing”” and, and together with the Equity Financing Financing, collectively referred to as the “Financing”)) for purposes of financing the Transactions and the related fees and expenses to be incurred by Parent in connection therewith. As of the date hereofof this Agreement, none neither of the Equity Funding Letters or Debt Commitment Financing Letters has been amended or modified, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in such letters have not been withdrawn withdrawn, terminated or rescinded in any respectrespect and no such withdrawal, termination or rescission is contemplated. The Parent or the Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Financing Letters that are payable on or prior to the date hereof and, as and (unless payment is agreed to be deferred or waived by the Debt Financing Sources in a binding written instrument) will continue to pay in full any such amounts required to be paid pursuant to the terms of the date hereof, Financing Letters as and when they become due and payable on or prior to the Equity Funding Letters and Closing Date. Assuming the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are satisfaction of the valid, binding and enforceable obligations of Parent and Merger Subconditions in Article VII, and to the Knowledge of Parent, the other parties thereto. Assuming assuming the Financing is funded in accordance with the Financing Letters and assuming the accuracy completion of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2Interim Period, the net proceeds contemplated by the Equity Funding 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 willLetter), together with the available unrestricted cash of the Company cashand its Subsidiaries, will in the aggregate be sufficient for the Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by by, or required in connection with the transactions described in, this Agreement or Agreement, the Equity Funding Letters Letter or the Debt Commitment LettersLetter) and any other amounts required to be paid in connection with the consummation of the Transactions (including all amounts payable in respect of Company Stock Options, Company RSUs and Company PSUs under this Agreement) and to pay all related fees and expensesexpenses of the Parent and the Merger Sub. The Financing Letters are (x) legal, valid and binding obligations of the Parent and the Merger Sub, as applicable, and each of the other parties thereto, (y) enforceable in accordance with their respective terms against the Parent and the Merger Sub, as applicable, and each of the other parties thereto, in each case except as such enforceability may be limited by the Bankruptcy and Equity Exception, and (z) in full force and effect. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of the Parent or the Merger Sub or, to the knowledge of the Parent, any other parties thereto under the Equity Funding Letters Letter or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Letter. As of the date of this Agreement, the Parent does not have any reason to believe that it or any of the conditions other parties to the Financing Letters will be unable to satisfy on a timely basis any term or condition of the Financing Letters required to be satisfied by it, that the conditions thereof will not otherwise be satisfied or that the full amount of the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunderClosing Date. The Financing Letters contain all of the only conditions precedent or other contingencies (including market “flex” provisions) related to the obligations of the parties thereunder Guarantors to make Financing available to Parent on fund the terms therein.
(b) Neither Parent, Merger Sub nor any member full amount of the Equity Provider Group has (i) retained Financing and the lenders to fund the full 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 of this Agreement, there are no side letters or other contracts or arrangements to which the Parent or any financial advisor on an exclusive basis of its Affiliates is a party related to the Financing other than Affiliates of any member of as expressly contained in the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating Financing Letters and delivered to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date prior to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)date hereof.
Appears in 1 contract
Samples: Merger Agreement (Analogic Corp)
Financing. (a) Parent has delivered to the Company true, correct a true and complete copies, as of the date of this Agreement, copy of (i) the executed debt commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. by and JPMorgan Chase Bank, N.A. among the lenders and financial institutions party thereto (the “Debt Financing Sources”) and Parent providing for debt financing as described by such commitment letter (such commitment letter, including all exhibits, schedules, annexes and amendments thereto, the “Commitment LettersLetter”) and (ii) the related fee letter referred to in the Commitment Letter (redacted for provisions related to fees, flex terms and other economic terms, the “Fee Letter” and, together with the Equity Funding LettersCommitment Letter, the “Financing LettersCommitment Documents”) ), in each case as amended, modified, supplemented, replaced or extended from time to providetime after the date of this Agreement in compliance with the terms hereof, pursuant to which, upon the terms and subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2Commitment Letter, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation certain of the Transactions and Financing Sources have agreed to pay all related fees and expenses. lend the amounts set forth therein, for the purpose of financing the Merger.
(b) As of the date of this Agreement, the Commitment Documents are in full force and effect and are valid and binding obligations of Parent and, to the knowledge of Parent, the other parties thereto, enforceable in accordance with their respective terms (subject to the Enforceability Exceptions), and are not subject to any conditions precedent related to the funding of the net proceeds of the Debt Financing that are not set forth in the copies of the Commitment Letter and the Fee Letter provided to the Company.
(c) The Commitment Documents have not been amended or modified prior to the date of this Agreement and the respective commitments contained therein have not been, to the knowledge of Parent, terminated, reduced, withdrawn or rescinded prior to the date of this Agreement.
(d) As of the date of this Agreement, none of the Financing Sources has notified Parent of its intention to terminate the Commitment Documents or not to provide the Debt Financing.
(e) As of the date of this Agreement, Parent is not in default or breach under the terms and conditions of the Commitment Documents and no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of by Parent or Merger Sub under the Equity Funding Letters terms and conditions of the Commitment Documents or a failure of any condition to the obligations of the Financing Sources in the Commitment Documents or otherwise result in any portion of the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing contemplated thereby to be unavailable. As of the date of this Agreement, Parent does not have any has no reason to believe that it or any other party thereto will be unable to satisfy any of the conditions to the Debt Financing will not to be satisfied pursuant to the Commitment Documents on the Closing Date or that the Debt Financing will not be available in full to Parent or Merger Sub on the date Closing Date. Notwithstanding the foregoing or any other provisions of the Closing; provided that this Agreement, Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and or warranties set forth in Article 3, 4 or the failure of non-compliance by the Company to perform and its Affiliates with their respective obligations hereunder. The Financing Letters contain all of the conditions precedent hereunder on any such condition to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinDebt Financing.
(bf) Neither Parent, Merger Sub nor any member As of the Equity Provider Group date of this Agreement, there are no side letters, understandings or other agreements relating to the Debt Financing to which Parent or any of its Affiliates is a party that could affect the availability or aggregate amount of the Debt Financing on the Closing Date, other than those set forth in the Commitment Letter and the Fee Letter.
(g) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees required by the Commitment Documents to be paid prior to the date of this Agreement.
(h) Assuming (i) retained any financial advisor on an exclusive basis other than Affiliates of any member the accuracy of the Equity Provider Group representations or warranties set forth in Article 4 to the extent necessary to satisfy the condition in Section 7.02(a), (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the compliance by the Company or and its Subsidiaries Affiliates with their respective obligations hereunder and (including iii) the conditions set forth in Sections 7.01 and 7.02 are satisfied at the Closing, the net proceeds contemplated by the Commitment Letter, together with available cash on hand of Parent, when funded in accordance with the Commitment Letter on the Closing Date will, in the aggregate, provide Parent and/or any Subsidiary of Parent with sufficient immediately available cash funds to consummate the transactions contemplated under this Agreement and any other amounts required to be paid in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member consummation of the Equity Provider Group has caused or induced any Person transactions contemplated under this Agreement and to take any action that, if taken by Parent, Merger Sub or any member pay all related fees and expenses required to be paid as of the Equity Provider Group, would be a breach of, or would cause to be untrue, any date of the representations in this Section 4.5(b)consummation of the Merger.
Appears in 1 contract
Financing. (a) Parent Buyer has delivered to the Company true, correct Parent a true and complete copiescopy of the executed Debt Commitment Letter and Equity Commitment Letter. Neither of the Commitment Letters has been amended or modified in any manner prior to the date of this Agreement. Neither Buyer nor any of its Affiliates has entered into any agreement, side letter or other arrangement (other than customary engagement letters and fee letters) relating to the financing of the Closing Date Payments or the transactions contemplated by this Agreement, other than as set forth in the Commitment Letters. The aggregate proceeds of the Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto), when funded, will be sufficient to consummate the transactions contemplated hereby, including the making of all Closing Date Payments on the Closing Date. As of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Commitment Letters have not been withdrawn or rescinded in any respect. Parent The Commitment Letters are in full force and effect and represent a valid, binding and enforceable obligation of Buyer and, to the Buyer’s knowledge, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or Merger Sub waiver of the Financing Conditions and except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any Action seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity). Buyer has fully paid (or caused to be paid) any and all commitment fees or and other fees in connection with the Equity Funding Letters and the Debt Commitment Letters amounts that are due and payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesFinancing. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent Buyer or, to the Buyer’s knowledge, any other party thereto under any of the Commitment Letters. There are no conditions precedent or Merger Sub under other contingencies related to the Equity Funding Letters or funding of the full amount of the Financing, other than as set forth in the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Letter. As of the date of this Agreement, Parent does not have any to the knowledge of the Buyer, subject to the satisfaction of the conditions set forth in Section 8.01 and Section 8.02, the Buyer has no reason to believe that (i) any of the conditions to Financing Conditions will not be satisfied or (ii) the Financing will not be satisfied or that the Financing will not be made available to Parent or Merger Sub Buyer on the date Closing Date. Buyer understands and acknowledges that under the terms of this Agreement, Buyer’s obligation to consummate the Closing; provided that Parent acquisition is not making in any representation regarding the inaccuracy way contingent upon or otherwise subject to Buyer’s consummation of the representations and warranties set forth in Article 3any financing arrangements, Buyer’s obtaining of any financing or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parentavailability, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates grant, provision or extension of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Buyer.
Appears in 1 contract
Financing. (a) Parent Purchaser has delivered to the Company true, correct Sellers true and complete copiescopies of the commitment letter, dated as of December 19, 2007, between Purchaser and Silicon Valley Bank and the date commitment letter, dated as of this AgreementDecember 19, of (i) executed commitment letters 2007, between Purchaser and Partners for Growth II, L.P. (the “Equity Funding LettersFinancing Commitments”), pursuant to which such lenders (the “Lenders”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively have agreed to lend the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount amounts set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)) for the purpose of funding the transactions contemplated by this Agreement. As None of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplatedmodified since the date thereof and hereof, and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any The Financing Commitments are in full force and all commitment fees effect. There are no conditions precedent or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior contingencies related to the date hereof and, as funding of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy full amount of the representations and warranties Financing, other than as expressly set forth in Article 3 the Financing Commitments and performance by the Company execution of its obligations under Section 5.2, subordination agreements between the net Lenders and the Sellers. The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Equity Funding Letters and Debt Commitment Letters willFinancing Commitments, together with Company cashavailable cash of the Purchaser, in the aggregate will be sufficient for Merger Sub and the Surviving Corporation Purchaser to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions cash Purchase Price and to pay all related fees and expenses, including payment of all amounts contemplated by Article II of this Agreement. As of the date of this Agreement, to the knowledge of Purchaser no event has occurred which, that is reasonably likely to result in any breach or violation of or constitute a default or a failure of any condition (or an event which with notice or without notice, lapse of time or both, both would constitute become a default or breach on the part of Parent or Merger Sub failure) under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations Financing Commitments, and warranties in Article 3. As of the date of this Agreement, Parent Purchaser 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 Parent Purchaser on the Closing Date. Purchaser has caused to be fully paid all commitment fees or Merger Sub on other fees required to be paid prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Financing Commitments.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) an executed commitment letters letter dated as of the date of this Agreement (the “Equity Funding LettersLetter”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “the Equity Provider”, and collectively the “Equity Provider Group”) Investor to provideinvest, subject to the terms and conditions therein, equity financing cash in the aggregate amount set forth therein to Parent (being collectively referred to as the “Equity Financing”), ) and (ii) an executed commitment letters letter and redacted forms Redacted Fee Letters from Jefferies Finance LLC and Bank of fee lettersMontreal (collectively, the “Lenders”), each dated as of the date of this AgreementAgreement (collectively, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersLetter” and, together with the Equity Funding LettersLetter, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount the amounts set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)) for the purpose of consummating the transactions contemplated by this Agreement. As of the date hereof, none of the Equity Funding Letters Letter or the Debt Commitment Letters Letter has been amended or modified, no such amendment or modification is contemplated, and the respective loan obligations and commitments contained in such letters Financing Letters have not been withdrawn or rescinded in any respect. As of the date hereof, Parent or Merger Sub Co-Borrower has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters Letter and the Debt Commitment Letters Letter that are payable on or prior due and payable. The net proceeds of the Financing, when funded in accordance with the Financing Letters (including after giving effect to all applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the date hereof and, as maximum amount of the date hereof, the Equity Funding Letters “flex” (including original issue discount and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a“flex”)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate aggregate, be sufficient for Merger Sub and the Surviving Corporation to pay the Offer Price in respect of each Share validly tendered and accepted for payment in the Offer, the aggregate Merger Consideration, Option Consideration and RSU Consideration all amounts required to be paid pursuant to Section 2.8 (and any other repayment or refinancing of debt contemplated by this Agreement or required as a result of the consummation of the transactions hereunder, the Equity Funding Letters Letter or the Debt Commitment LettersLetter) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. The Financing Letters, in the form delivered to the Company, are in full force and effect as of the date hereof and constitute a legal, valid and binding obligation of Parent and Co-Borrower, as applicable, enforceable in accordance with their terms and, to the knowledge of each of Parent and Co-Borrower, as applicable, of the other parties thereto. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub Co-Borrower or, to the knowledge of Parent, any other parties thereto, under the Equity Funding Letters Letter or the Debt Commitment LettersLetter; provided that Parent is and Merger Sub are not making any representation or warranty regarding the effect of the any inaccuracy of the representations and warranties set forth in Article Section 3, or the Company’s compliance hereunder; provided, further that neither Parent nor Merger Sub is aware of any fact, occurrence or condition that would reasonably be expected to make any of the assumptions, statements, representations or warranties in the Financing Letters inaccurate in any material respect or that would reasonably be expected to cause the commitments provided in the Financing Letters to be terminated or ineffective or any of the conditions contained in the Financing Letters not to be met. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions precedent of Parent to the Financing will not be satisfied on a timely basis or that the Financing will not be available to Parent or Merger Sub at the Acceptance Time or on the date of the ClosingClosing if an Offer Termination occurs; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties set forth in Article Section 3, or the failure of compliance by the Company to perform with its obligations hereunder; provided, further that neither Parent nor Merger Sub is aware of any fact, occurrence or condition that would reasonably be expected to make any of the assumptions, statements, representations or warranties in the Financing Letters inaccurate in any material respect or that would reasonably be expected to cause the commitments provided in the Financing Letters to be terminated or ineffective or any of the conditions contained in the Financing Letters not to be met. The Financing Letters contain all of the conditions precedent of Parent and Merger Sub to the obligations of the parties Equity Provider and the Financing Sources thereunder to make Financing available to Parent or the Merger Sub on the terms therein.
(b) Neither Parent, Merger Sub nor any member . There are no contingencies that would permit the Equity Investor or the Lenders either to reduce the total amount of the Equity Provider Group has (i) retained Financing contemplated by the Financing Letters or to impose any financial advisor on an exclusive basis other than Affiliates of any member additional conditions precedent or contingency to the availability of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken Financing contemplated by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).the
Appears in 1 contract
Samples: Merger Agreement (Greenway Medical Technologies Inc)
Financing. (a) Parent has delivered to the Company true, complete and correct and complete copies, as of the date of this Agreement, copies of (i) a fully executed commitment letters letter (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity FinancingDebt Commitment Letter”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc.Inc. (together, Citigroup Global Markets Inc.the “Senior Lenders”), JPMorgan Securities Inc. pursuant to which such financial institutions have committed, upon the terms and JPMorgan Chase Banksubject to the conditions set forth therein, N.A. to provide credit facilities in the amount of $200 million in connection with the transactions contemplated by this Agreement and (ii) a fully executed commitment letter from FP-Metrologic, LLC (the “Debt Equity Commitment Letters” andLetter”), together with pursuant to which FP-Metrologic, LLC has committed, upon the Equity Funding Letters, the “Financing Letters”) to provide, terms and subject to the terms and conditions set forth therein, debt to provide equity financing in an the aggregate amount set forth therein (being collectively of up to $153 million in connection with the transactions contemplated by this Agreement. The Debt Commitment Letter and the Equity Commitment Letter are hereinafter referred to collectively as the “Debt FinancingCommitment Letters.”, and together with the Equity Financing collectively referred to as the “Financing”).
(b) As of the date hereof, none of : (i) the Equity Funding Letters or Debt Commitment Letters has are in full force and effect; (ii) all commitment fees required to be paid thereunder will be duly paid by Parent in full when due; (iii) the Commitment Letters have not been amended or modifiedterminated; and (iv) excluding any breach caused by the Company or its Subsidiaries, there is no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respectbreach existing thereunder. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof andnot, as of the date hereof, been informed by the Equity Funding Letters and Senior Lenders of any fact, occurrence or condition unrelated to the Company that would cause the financing contemplated by the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant Letter to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties theretonot be consummated as contemplated therein. Assuming the Financing is funded and assuming the accuracy of that the representations and warranties set forth in Article 3 and performance by of the Company in this Agreement are true and correct and that the Rollover Investors contribute their shares of its obligations under Section 5.2Company Common Stock in accordance with the terms of the Contribution Agreements, the net aggregate proceeds contemplated by the Equity Funding Letters Commitment Letters, if and Debt when funded immediately prior to the Effective Time in accordance with the Commitment Letters willLetters, together with Company cashthe available unrestricted cash and fully liquid cash equivalents in an amount sufficient to satisfy the condition set forth in Section 7.2(g), in the aggregate will be sufficient for Merger Sub Parent and the Surviving Corporation after Closing to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required aggregate consideration to be paid to holders of Company Stock Options pursuant to Section 2.3 hereof and the fees and expenses incurred in connection with the consummation of the Transactions and to pay all related fees and expenses. As transactions contemplated hereby.
(c) Parent has not, as of the date hereof, been informed by the Senior Lenders of this Agreementany fact, no event has occurred which, with occurrence or without notice, lapse condition that makes any of time the assumptions or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or statements set forth in the Debt Commitment Letters; Letter inaccurate in any material respect or that would cause the commitments provided that Parent is not making any representation regarding in the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason Debt Commitment Letter to believe that be terminated or ineffective or any of the conditions contained therein not to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinmet.
(bd) Neither Parent, Merger Sub nor any member of The equity investment under the Equity Provider Group has (i) retained Commitment Letter is not subject to any financial advisor on an exclusive basis condition other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)as set forth therein.
Appears in 1 contract
Financing. (a) Parent is party to and has accepted a fully executed commitment letter, dated July 2, 2017 (attached hereto as Exhibit C, together with all exhibits or schedules thereto, the “Debt Commitment Letter”), from the Lenders party thereto pursuant to which the Lenders have agreed, subject to the terms and conditions thereof, to provide the full amount of the debt financing set forth therein. The debt financing committed pursuant to the Debt Commitment Letter is collectively referred to in this Agreement as the “Financing.”
(b) Parent and Merger Sub have delivered to the Company true, complete and correct copies of the executed Debt Commitment Letter and complete copiesany fee letters related thereto, subject, in the case of such fee letters, to redaction solely of fee and other economic provisions that are customarily redacted in connection with transactions of this type and that do not adversely affect the availability or amount of the Financing. Table of Contents
(c) Except as expressly set forth in the Debt Commitment Letter, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject there are no conditions precedent to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as obligations of the date Lenders to provide the Financing or any contingencies that would permit the Lenders to reduce the total amount of this Agreementthe Financing, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject including any condition or other contingency relating to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As availability of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into Financing pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses“flex” provision. As of the date of this Agreement, neither Parent nor Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis all terms and conditions to be satisfied by it in the Debt Commitment Letter on or prior to the Closing Date, nor does Parent or Merger Sub have knowledge that any of the Lenders will not perform its obligations thereunder. 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 adversely affect the availability of the Financing contemplated by the Debt Commitment Letter.
(d) The Financing, when funded in accordance with the Debt Commitment Letter, together with available cash at the Company and its Subsidiaries and other available cash or other funds of Parent and its Subsidiaries, shall, in the aggregate, provide Parent and its Subsidiaries with cash proceeds (after netting out original issue discount and similar premiums and charges after giving effect to the maximum amount of flex (including original issue discount flex) provided under the Debt Commitment Letter and any related fee letter) 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 aggregate Merger Consideration (including the amounts payable pursuant to Sections 2.7 and 2.8) and any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation, and for any repayment or refinancing of any outstanding Indebtedness of Parent, the Company and/or any of their respective Subsidiaries contemplated by this Agreement or the Debt Commitment Letter.
(e) As of the date of this Agreement, the Debt Commitment Letter is (i) a legal, valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, of each of the other parties thereto (except as limited by the Enforceability Exceptions) and (ii) in full force and effect. Assuming satisfaction or waiver (to the extent permitted by Law) of the conditions to Parent’s and Merger Sub’s obligations to consummate the Merger, as of the date of this Agreement, (i) no event has occurred which, which (with or without notice, lapse of time or both, ) would constitute a default or breach on the part of failure to satisfy a condition by Parent or Merger Sub under the Equity Funding Letters or terms and conditions of the Debt Commitment Letters; provided that Letter and (ii) neither Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have nor Merger Sub has any reason to believe that any of the conditions to the Financing will not be satisfied by Parent on a timely basis or that the Financing will not be available to Parent or Merger Sub one or more of its Subsidiaries on the Closing Date. Parent has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Debt Commitment Letter on or before the date of this Agreement, and will pay (or cause to be paid) in full any such amounts due on or before the Closing; provided that Parent is Closing Date. The Debt Commitment Letter has not making any representation regarding the inaccuracy been modified, amended or altered as of the representations and warranties set forth in Article 3date of this Agreement and, or the failure as of the Company to perform its obligations hereunder. The Financing Letters contain all date of this Agreement, none of the conditions precedent commitments under the Debt Commitment Letter has been withdrawn or rescinded in any respect, and, to the obligations Knowledge of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member no withdrawal or rescission thereof is contemplated. To the Knowledge of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach no modification of, or would cause amendment to, the Debt Commitment Letter is currently contemplated except for the addition of Lenders, lead arrangers, bookrunners, agents or similar entities who have not executed the Debt Commitment Letter as of the date hereof. Table of Contents (f) Without limiting the effect of Section 7.5(f) or Section 8.7, 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 Affiliate of Parent or any other financing or other transactions be a condition to be untrue, any of the representations in Parent’s or Merger Sub’s obligations under this Section 4.5(b)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Bankrate, Inc.)
Financing. (a) Parent has delivered Purchasers shall use their commercially reasonable efforts to arrange and obtain the Company true, correct and complete copies, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to Debt Financing on the terms and conditions therein, equity financing described in the aggregate amount set forth therein Debt Financing Commitments (being collectively referred to as the “Equity Financing”)including any flex provisions applicable thereto) (provided, and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters that Purchasers may amend or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and replace the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed a Debt Financing Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof), including using commercially reasonable efforts to (A) negotiate and enter into definitive agreements with respect thereto on the Equity Funding Letters terms and conditions contained in the Debt Commitment Letters Financing Commitments, (orB) satisfy on a timely basis all conditions and covenants applicable to Purchasers in the Debt Financing Commitments that are within their control (or obtain the waiver of conditions applicable to Purchasers contained in the Debt Financing Commitments) in order to obtain the Debt Financing at Closing, if applicable(C) draw down upon and consummate the Financing contemplated by the Debt Financing Commitments at or prior to the Closing, any alternative debt and (D) fully pay, or cause to be fully paid, all commitment letters entered into or other fees arising pursuant to Section 5.5(a)) are the valid, binding Debt Financing Commitment as and enforceable obligations of Parent and Merger Sub, and when they become due. Subject to the Knowledge of Parentfollowing sentence, Purchasers shall maintain in full force and effect the other parties thereto. Assuming Debt Financing Commitments in accordance with their terms until the Financing is funded and assuming the accuracy earlier of the representations and warranties consummation of the Transactions or the valid termination of this Agreement in accordance with its terms (provided, that such date is no later than the termination or expiration date set forth in Article 3 and performance the Debt Financing Commitments). Purchasers shall have the right from time to time to (x) amend, replace, supplement or otherwise modify, or waive any of its rights under, the Debt Financing Commitments, (y) substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative Debt Financing Sources and/or (z) reduce the amount of Debt Financing under the Debt Financing Commitments in its reasonable discretion; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Financing Commitments that amends the Debt Financing, and/or substitution of all or any portion of the Debt Financing, and/or reduction in the amount of Debt Financing shall not, without the prior written consent of Seller, (1) expand, amend, modify or add to the conditions precedent to the Debt Financing as set forth in the Debt Financing Commitments in any respect that would make such conditions materially less likely to be satisfied by the Company Closing Date, (2) adversely affect the ability of its obligations under Section 5.2Purchasers to enforce their rights against other parties to the Debt Financing Commitment, or the net proceeds definitive documentation governing the Debt Financing as so amended, replaced, supplemented or otherwise modified, relative to the ability of Purchasers to enforce their rights against such other parties to the Debt Financing Commitment and any related fee letter as in effect on the date hereof, (3) affect Purchasers’ ability to consummate the transactions contemplated by this Agreement on the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt terms contemplated by this Agreement or the Equity Funding Letters (4) prevent or the Debt Commitment Letters) and any other amounts required to be paid in connection with materially impede or materially delay the consummation of the Acquisition and the other Transactions and or otherwise make materially less likely to pay all related fees and expenses. As occur the funding of the date Debt Financing; provided, further, that Purchasers shall not reduce the Debt Financing to an amount committed below the amount that is required, together with other financial resources of Purchasers, including amounts available under the Equity Financing Commitments, cash, cash equivalents and marketable securities of Purchasers, the Company and the Company’s Subsidiaries on the Closing Date, to consummate the Acquisition on the terms contemplated by this Agreement. For the avoidance of doubt, the syndication of the Debt Financing to the extent permitted by the Debt Financing Commitments shall not be deemed to violate Purchasers’ obligations under this Agreement. Purchasers shall give the Company and Seller prompt (in no event has occurred whichmore than five (5) Business Days) written notice: (1) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would constitute a default reasonably be expected to give rise to any breach or breach on the part of Parent default) by any party to any Financing Commitments or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions definitive document related to the Financing of which a Purchaser obtains actual knowledge; (2) of the receipt of any written notice or other written communication from any Person with respect to any actual or potential breach, default, termination, or repudiation by any party to any Financing Commitments or any definitive document related to the Financing or any provisions of the Financing Commitments or any definitive document related to the Financing; and (3) if for any reason Purchasers believe in good faith that they will not be satisfied able to obtain all or that any portion of the Financing will not be available on substantially the terms contemplated by the Financing Commitments or the definitive documents related to Parent the Financing. Purchasers shall promptly provide to the Company (but in any event within five (5) Business Days upon receipt of any information related thereto) any information relating to any circumstance referred to in clause (1), (2) or Merger Sub on the date (3) of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinimmediately preceding sentence.
(b) Neither Parent, Merger Sub nor In the event any member portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the Debt Financing Commitments, Purchasers shall promptly notify Seller and shall use their commercially reasonable efforts to arrange to obtain alternative debt financing (the “Alternative Financing”) from alternative sources on terms not less favorable to Purchasers (as determined in the reasonable judgment of Purchasers, taking into account the flex provisions set forth in the Debt Financing Commitments), in an amount sufficient to consummate the Transactions promptly following the occurrence of such event and if Purchasers proceed with any Alternative Financing, Purchasers will be subject to the same obligations with respect to such Alternative Financing as set forth in this Agreement with respect to the Debt Financing. Purchasers shall promptly deliver to Seller true and complete copies of all agreements pursuant to which any such alternative source shall have committed to provide Purchasers with any portion of the Debt Financing; provided, that any fee letter may be redacted in a customary way as to economic and “flex” provisions.
(c) Purchasers shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, any Equity Provider Group has Financing Commitments without the consent of Seller. Purchasers shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Equity Financing on the terms and conditions described in the Equity Financing Commitments, including using commercially reasonable efforts to (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of maintain in effect the Equity Provider Group or Financing Commitments and (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing satisfy on an exclusive a timely basis (or otherwise on terms all conditions within its control applicable to Purchasers to obtaining the Equity Financing set forth in the Equity Financing Commitments. In the event that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating all conditions to the Company or its Subsidiaries (including Equity Financing Commitments have been satisfied in connection with Purchasers’ good faith judgment, Purchasers shall use commercially reasonable efforts to cause the making of any Takeover Proposal)), in Investors to fund on the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Closing Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced Financing required to consummate the Closing. Purchasers shall not, and shall not permit any Person to of their Subsidiaries to, take any action that, if taken by Parent, Merger Sub not otherwise required or any member of the Equity Provider Group, would be expressly permitted under this Agreement that is a breach of, or would cause result in termination of, the Equity Financing Commitment. Purchasers shall give Seller prompt written notice of any material breach by any party to be untrueany Equity Financing Commitment, of which Purchasers become aware, or any termination of any Equity Financing Commitment or unavailability of any portion of the representations Equity Financing. Purchasers shall keep the Company fully informed on a current basis of the status of its efforts to arrange the Equity Financing including any alternative or replacement financing therefor.
(d) Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Section 4.5(b5.06 or elsewhere in this Agreement shall require, and in no event shall the “commercially reasonable efforts” of Purchasers be deemed or construed to require, Purchasers to bring (A) any Action against any source of any Debt Financing to enforce its respective rights under the Financing Commitments, (B) seek the Equity Financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Financing Commitments, (C) seek or accept Debt Financing on terms less favorable than the terms and conditions described in the Debt Financing Commitments (including the exercise of flex provisions) or (D) pay any fees in excess of those contemplated by the Financing Commitments (whether to secure a waiver of any conditions contained therein or otherwise).
(e) For purposes of this Agreement, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be amended, modified, replaced, supplemented or substituted by this Section 5.06 and references to “Financing Commitments” or “Debt Financing Commitments” shall include such documents as permitted to be amended, modified, replaced, supplemented or substituted by this Section 5.06.
Appears in 1 contract
Financing. (a) Concurrently with the execution and delivery of the Second Amended and Restated Agreement, Parent has delivered to the Company truethe Equity Commitment Letter, correct and complete copies, as concurrently with the execution and delivery of the date of this First Amended and Restated Agreement, of (i) executed Parent delivered to the Company a debt commitment letters letter from the lenders party thereto (the “Equity Funding LettersCommitted Lenders”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersarrangers party thereto, dated as of the First Amendment and Restatement Execution Date, addressed to Merger Sub (including all annexes, exhibits, schedules and other attachments thereto, and as replaced, amended, supplemented, modified or waived after the date of this Agreementhereof in compliance with Section 6.09, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersLetter” andand the financing contemplated thereby, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and the Debt Financing, together with the Equity Financing collectively referred to as Financing, the “Financing”), pursuant to which the Committed Lenders committed, on the terms and subject to the conditions set forth therein, to lend the amounts set forth therein for the purpose of funding the Transactions. As of the date hereofExecution Date, none each of the Equity Funding Letters or Debt Commitment Letters has been amended or modifiedaccepted by Merger Sub, no such amendment or modification is contemplated, in full force and the respective commitments contained in such letters have effect and has not been withdrawn or rescinded terminated or otherwise amended or modified in any respect. Parent ; provided that the existence or Merger Sub has fully paid any and all commitment fees exercise of “market flex” provisions contained in the Fee Letter (as defined below) shall not constitute an amendment or other fees in connection with the Equity Funding Letters and modification to the Debt Commitment Letters that are payable on or prior to Letter. As of the date hereof Execution Date, (x) the Equity Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto, and is enforceable against each party thereto in accordance with its terms, and (y) the Debt Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Merger Sub and, to the Knowledge of Parent, the other parties thereto, and is enforceable against each party thereto in accordance with its terms, in each case except as limited by the Equitable Exceptions. Assuming As of the Execution Date, there are no other legally binding agreements, side letters or arrangements relating to the Financing is funded (other than the Commitment Letters and the fee letter relating to the Debt Commitment Letter, a true and complete copy of which has been provided to the Company, with only the existence and/or amount of fees, “market flex” terms, pricing terms, pricing caps and other commercially sensitive information specified therein redacted, none of which redacted terms, individually or in the aggregate, would reduce the amount of the Debt Financing below an amount necessary (together with the Equity Financing) to make all payments required by this Agreement or adversely affect the conditionality, availability or termination of the Debt Financing or materially delay or prevent the Closing or make the funding of the Debt Financing less likely to occur (“Permissible Redacted Terms”) (such fee letter, the “Fee Letter”)) among the parties thereto. As of the Execution Date, and (in the case of clause (ii)) assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this AgreementIII, no event has occurred occurred, and there is no condition or circumstance existing, which, with or without notice, lapse of time or both, would or would reasonably be likely to (i) constitute a default or breach on the part of Parent or Parent, Merger Sub or, to the Knowledge of Parent, any other party thereto, under any of the Equity Funding Commitment Letters or the Debt Commitment Letters; provided that Parent is not making (ii) result in any representation regarding the effect portion of the inaccuracy of Financing being unavailable on the representations and warranties in Article 3Closing Date. As of the date of this AgreementExecution Date, Parent does not have any reason there are no conditions precedent or other contingencies related to believe that any the funding of the conditions to full amount of the Financing will not (including any “market flex” provisions), other than as expressly set forth in the Commitment Letters and the Fee Letter. Parent and Merger Sub have fully paid, or caused to be satisfied fully paid, any and all commitment fees or other amounts that the Financing will not be available to are due and payable by Parent or Merger Sub on or prior to the date Execution Date pursuant to the Commitment Letters or otherwise in connection with the Financing. As of the Execution Date, no party to any Commitment Letter has any right to impose, and Parent and Merger Sub do not have an obligation to accept, (i) any condition precedent to the funding of the Financing other than as expressly set forth in or contemplated by the Commitment Letters and the Fee Letter or (ii) any reduction to the aggregate amount available under the Commitment Letters at Closing (nor any term or condition that would have the effect of reducing the aggregate amount available under the Commitment Letters at Closing; provided ) to an amount that would be insufficient for Parent is not making any representation regarding and Merger Sub to consummate the inaccuracy Transactions, including payment of the Required Amount. As of the Execution Date, and assuming the accuracy of the representations and warranties set forth in Article 3III, or each of Parent and Merger Sub, as applicable, has no reason to believe that it will be unable to satisfy on a timely basis (taking into account the failure timing of the Company to perform its obligations hereunder. The Financing Letters contain all Marketing Period) any of the terms or conditions precedent to funding to be satisfied by it contained in the obligations of the parties thereunder to make Financing available to Parent on the terms thereinCommitment Letters.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group Parent has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating delivered to the Company or its Subsidiaries a true and complete copy of a Limited Guarantee, dated as of the date hereof (including the “Limited Guarantee”), by and between the Fund and the Company, pursuant to which the Fund has guaranteed certain payment obligations of Parent under this Agreement on the terms, and subject to the conditions, set forth in connection the Limited Guarantee. The Limited Guarantee is in full force and effect and is a legal, valid and binding obligation of the Fund, except as limited by the Equitable Exceptions.
(c) Assuming the Financing is funded in full on the Closing Date in accordance with the making of any Takeover Proposal))Commitment Letters, in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any accuracy of the representations set forth in Article III and the performance by the Company and its Affiliates of their respective obligations under this Agreement and the Second Amended and Restated Agreement, including the obligations set forth in Section 4.5(b6.09, Section 6.11 and Section 6.12, Parent and Merger Sub will have, at the Closing, sufficient funds to satisfy all of the obligations of Parent and Merger Sub hereunder and to consummate the Transactions, including payment of the aggregate Merger Consideration, the Option Payments, RSU Payments and all related fees and expenses under this Agreement, the Second Amended and Restated Agreement, the Commitment Letters and the Fee Letter, in each case, that are due and payable on the Closing Date (collectively, the “Required Amount”).
(d) In no event shall the receipt or availability of any funds or financing (including the Debt Financing) by Parent or any of its Affiliates or any other financing or other transactions be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement or the Second Amended and Restated Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Anixter International Inc)
Financing. (a) Parent The Buyer has delivered to the Company Archaea true, correct and complete copies, as of the date of this Agreement, copies of (i) each of the Subscription Agreements entered into by the Buyer with the PIPE Investors and (ii) an executed debt commitment letter, dated as of the Execution Date (including all exhibits, schedules and annexes thereto, collectively, as amended, the “Debt Commitment Letter”, and together with the Subscription Agreements and Forward Purchase Agreement, the “Commitment Letters”), from the Debt Financing Sources and all fee letters associated therewith (the “Equity Funding LettersFee Letter”) from Silver Lake Partners III(provided that provisions in the fee letters related solely to fees and economic terms and “market flex” provisions agreed to by the parties may be redacted (none of which redacted provisions adversely affect the availability of or impose additional conditions on, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”availability of the Debt Financing at the Closing)) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as Financing, the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to To the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded Buyer and assuming the accuracy of the representations and warranties of the applicable Debt Financing Sources and Equity Financing Source set forth in Article 3 the Commitment Letters, with respect to the Debt Financing Sources and performance by each Equity Financing Source, as applicable, as of the Company of its obligations under Section 5.2Execution Date, the net proceeds Commitment Letters are in full force and effect and have not been withdrawn or terminated, or otherwise amended or modified, and no withdrawal, termination, amendment or modification is currently contemplated by any party thereto. Each of the Equity Funding Letters and Debt Commitment Letters willis Enforceable against the Buyer and, together with Company cash, to the Knowledge of the Buyer and assuming the accuracy of the representations and warranties of the applicable Debt Financing Source and Equity Financing Source set forth in the aggregate be sufficient for Merger Sub Commitment Letters, each Debt Financing Source and Equity Financing Source. Other than the Surviving Corporation Fee Letter, there are no other agreements, side letters, or arrangements between the Buyer and (i) Debt Financing Source related to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration Debt Financing or (and ii) any other repayment or refinancing of debt contemplated by this Equity Financing Source relating to any Subscription Agreement or the Equity Funding Forward Purchase Agreement. As of the Execution Date, there are no facts or circumstances that (i) would reasonably be expected to constitute a default or a breach of the Commitment Letters by the Buyer or, to Buyer’s Knowledge, the other parties thereto or (ii) to Buyer’s Knowledge, would reasonably be expected to result in any of the conditions set forth in any Commitment Letter not being satisfied, or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation aggregate amount of the Transactions Financing not being available to the Buyer, on the Closing Date. Except as set forth in the Commitment Letters and the Fee Letter, there are no conditions precedent to pay all related fees and expensesthe obligations of the Debt Financing Sources or the Equity Financing Sources to provide the Financing or any contingencies that would permit the Debt Financing Sources or the Equity Financing Sources, as applicable, 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” provisions). As of the date of this Agreement, no event Buyer has occurred which, with paid in full any and all commitment fees or without notice, lapse other fees required to be paid pursuant to the terms of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Commitment Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of Fee Letter on or before the date of this Agreement, Parent does not have and will pay in full any reason to believe that any of such amounts due on or before the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinClosing Date.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Samples: Business Combination Agreement (Rice Acquisition Corp.)
Financing. (a) Parent Purchaser has delivered to the Company true, correct Seller true and complete copies, copies of fully executed commitment letters dated as of the date hereof (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, of (i) executed commitment letters (the “Equity Funding Commitment Letters”) from Silver Lake each of Apollo Investment Fund VIII, L.P., Apollo Overseas Partners IIIVIII, L.P., Apollo Overseas Partners (Delaware) VIII, L.P. and TPG Apollo Overseas Partners V(Delaware 892) VIII, L.P. (collectively, the “Sponsors” and each, an individually, a “Equity Provider”, and collectively the “Equity Provider GroupSponsor”) to provideproviding for an equity investment in Purchaser from each Sponsor, subject to the terms and conditions therein, equity financing in cash in the aggregate amount amounts set forth therein (being collectively referred to as the “Equity FinancingCommitments”), and (ii) executed commitment letters and redacted forms of fee letters, dated as . As of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has have not been amended or modified, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in such letters have not been withdrawn withdrawn, terminated or rescinded in any respectrespect and no such withdrawal, termination or rescission is contemplated. Parent or Merger Sub has fully paid any and all commitment fees or other fees Assuming the Equity Commitments are funded in connection accordance with the Equity Funding Commitment Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by Seller and the Company of its their respective obligations under Section 5.2this Agreement, Purchaser will have on the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be Closing Date funds sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions Purchase Price and to pay all related fees and expenses. As Each Equity Commitment Letter (1) contains legal, valid and binding obligations of Purchaser and the date of this Agreementapplicable Sponsor, no event has occurred which(2) is enforceable in accordance with its terms against Purchaser and the applicable Sponsor, with or without noticein each case except as such enforceability may be limited by the Bankruptcy and Equity Exception, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent and (3) is not making any representation regarding the effect of the inaccuracy of the representations in full force and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereundereffect. The Financing Letters contain all of the only conditions precedent or other contingencies related to the obligations of the parties thereunder Sponsors to make Financing available to Parent on fund the terms therein.
(b) Neither Parent, Merger Sub nor any member full amount of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of Commitments are those expressly set forth in the Equity Provider Group or (ii) entered into an agreementCommitment Letters, arrangement or understanding with any bank or investment bank and there are no side letters or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected Contracts to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub which Purchaser or any member of the Equity Provider Group, would be its Affiliates is a breach of, party that contain any such conditions precedent or would cause to be untrue, any of the representations in this Section 4.5(b)other contingencies.
Appears in 1 contract
Financing. (a) As of the date of this Agreement, Parent has delivered to the Company true, complete and correct and complete copies, as copies of the date fully executed Commitment Letter and the fully executed Fee Letter executed in connection with the Financing (with only fee amounts, dates and certain other economic terms, including in respect of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”market flex” and “securities demand” provisions, redacted) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively none of which would adversely affect the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as or availability of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”other than through original issue discount). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modifiedLetter is in full force and effect and constitutes the legal, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Suband, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded thereto (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and assuming the accuracy other laws affecting creditors’ rights generally and general principles of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesequity). As of the date hereof, the Commitment Letter and Fee Letter have not been amended or modified in any respect and, to the Knowledge of this AgreementParent, the commitments in the Commitment Letter have not been withdrawn or terminated. There are no conditions precedent to the funding of the full amount of the Financing on the terms set forth in the Commitment Letter (as such terms may be altered in accordance with the “market flex” provisions set forth in the Fee Letter executed in connection with the Financing) other than as expressly set forth as of the date hereof in the Commitment Letter. As of the date hereof, no event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default or breach on the part of by Parent or any other party thereto under the Commitment Letter. Subject to the terms and conditions of the Commitment Letter, as of the date hereof, assuming satisfaction of the conditions set forth in Section 8.1 and Section 8.2, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letter, together with other financial resources of Parent, including its cash on hand and marketable securities, and cash on hand of the Company, will, in the aggregate, be sufficient to fund the Cash Consideration, the cash payable to holders of Company Equity Awards, pursuant to Section 1.8, the payment of any debt required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Merger as of the date hereof (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, canceled, terminated or otherwise satisfied or discharged in connection with the Merger, including premiums and fees incurred in connection therewith (the “Required Indebtedness”)), and all other fees and expenses incurred by Parent, Merger Sub under 1 and Merger Sub 2 in connection with the Equity Funding Letters or Merger and the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3other transactions contemplated hereby. As of the date hereof, assuming satisfaction of this Agreementthe conditions set forth in Section 8.2, Parent does not have any has no reason to believe that either it or any other party will be unable to satisfy on a timely basis any condition of the conditions to Financing under the Financing will not be satisfied Commitment Letter or any related Fee Letter or that the Financing contemplated by the Commitment Letter will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing made available to Parent on the terms therein.
Closing Date. Assuming satisfaction of the conditions set forth in Sections 8.1 and 8.2, if the Closing were to occur on the date hereof, the incurrence of the indebtedness contemplated by the Commitment Letter, including the liens and guarantees provided in connection therewith as set forth in the Commitment Letter, and the consummation of the transactions contemplated by this Agreement, would not result in a default or event of default under the Parent Existing Credit Agreement, the Parent Existing Notes and the indentures governing the Parent Existing Notes. There are no other letters, agreements or understandings (bother than customary non-disclosure agreements and diligence non-reliance letters) Neither between Parent, Merger Sub nor any member of on the Equity Provider Group has (i) retained any financial advisor one hand, and the Financing Sources, on an exclusive basis the other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii)hand, in connection with the Merger Financing. Parent has fully paid all fees and expenses and other amounts required to be paid on or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date prior to the extent permitted date of this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Commitment Letter.
Appears in 1 contract
Samples: Merger Agreement (Tw Telecom Inc.)
Financing. (a) Parent has delivered to the Company Galaxy a true, complete and correct and complete copiescopy of the executed debt commitment letters, dated as of the date hereof (x) among Parent, and GSO Capital Partners LP and (y) among Parent and Bank of this AgreementAmerica, of (i) executed commitment letters N.A. (the “Equity Funding LettersFinancing Commitments”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto have committed, subject to the terms and conditions set forth therein, equity financing in to lend the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none (i) the Financing Commitments are a legal, valid, binding and enforceable agreement of Parent or its applicable Subsidiary and, to the Equity Funding Letters knowledge of Parent, any other party thereto, and, to the knowledge of Parent, are in full force and effect, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or Debt Commitment Letters has been amended other laws of general application relating to or modified, no such amendment or modification is contemplated, affecting rights of creditors and (ii) the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. As of the date hereof, none of Parent or Merger Sub any of its Subsidiaries or, to the knowledge of Parent, any other party is in breach or violation of, or (with or without notice or lapse of time or both) default under, any such Financing Commitment, nor has fully paid Parent or any of its Subsidiaries received any claim of any such breach. Except for the fee letters referenced in the Financing Commitment (a true, complete and all commitment fees correct copy of which has been provided to Galaxy, with only fee amounts and certain economic terms of the market flex and securities demand redacted), as of the date hereof there are no side letters or other agreements, Contracts or arrangements related to the funding of the Financing other than as expressly set forth in the Financing Commitments delivered to Galaxy 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 expressly set forth in or expressly contemplated by the Financing Commitments. All commitment and other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable required to be paid on or prior to the date hereof and, as under the Financing Commitments have been paid. Neither Parent nor any of its Subsidiaries has any reason to believe that (A) it or any of its Subsidiaries or any other party thereto will be unable to satisfy on a timely basis any term or condition of the date hereof, Financing Commitments or (B) the Equity Funding Letters and amounts set forth in the Debt Commitment Letters Financing Commitments for the purposes set forth therein will not be made available to Parent or its Subsidiaries on the Closing Date.
(or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)b) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming (A) the Financing is funded in accordance with the Financing Commitments and assuming (B) the accuracy satisfaction of the representations conditions to the obligations of Parent, Merger Sub and warranties set forth in Article 3 and performance by LLC Sub to consummate the Company of its obligations under Section 5.2Mergers, the net proceeds contemplated by of the Equity Funding Letters Financing Commitments (both before and Debt Commitment Letters willafter giving effect to the exercise of any or all “market flex” provisions related thereto), together with Company cashthe cash on hand of Parent, Merger Sub, LLC Sub and the Initial Surviving Corporation, will in the aggregate be sufficient for Parent, Merger Sub, LLC Sub and the Initial Surviving Corporation to pay the aggregate Closing Date Cash Merger Consideration, Option Consideration and RSU Consideration (pay any and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) all fees and any other amounts expenses required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of and the Equity Provider Group, would be a breach of, or would cause to be untrue, any of Initial Surviving Corporation in connection with the representations in this Section 4.5(b)Mergers and the Financing.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as As of the date of this Agreement, of (i) Parent has received an executed commitment letters letter dated December 19, 2005 (the “Equity Funding LettersDebt Commitment Letter”) from Silver Lake Partners IIIJPMorgan Chase Bank, L.P. N.A. and TPG Partners VJ.X. Xxxxxx Securities Inc. (collectively, L.P. (each“JPMorgan”), an “Equity Provider”, and collectively the “Equity Provider Group”) pursuant to providewhich JPMorgan has committed, subject to the terms and conditions set forth therein, equity to provide to Parent the amount of financing set forth in the aggregate amount set forth therein Debt Commitment Letter (being collectively referred to as the “Equity Debt Financing”), to complete the Transactions. A true and (ii) executed commitment letters and redacted forms of fee letters, dated as complete copy of the date of this AgreementDebt Commitment Letter has been previously provided to the Company.
(b) Parent has entered into a Contribution and Voting Agreement dated December 19, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. 2005 (the “Debt Equity Commitment LettersAgreement” and, and together with the Equity Funding LettersDebt Commitment Letter, the “Financing Commitment Letters”) with certain existing stockholders of Parent named therein (including affiliates of Prides Capital Fund I, L.P.), pursuant to providewhich such stockholders (or their assignees or designees) have committed, subject to the terms and conditions set forth therein, debt to provide to Parent $169.7 million of equity financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Equity Financing”, ” and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”)) to complete the Transactions. A true and complete copy of the Equity Commitment Agreement has been previously provided to the Company.
(c) As of the date hereof, the Commitment Letters have not been amended or modified. As of the date hereof, none of the Equity Funding Letters or Debt obligations to fund the commitments under the Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and are not subject to any conditions other than as set forth in the respective commitments contained in such letters have not been withdrawn or rescinded in any respectCommitment Letters. Parent or and Merger Sub has have fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt required by such Commitment Letters that are payable on or prior to be paid as of the date hereof and, as (and will duly pay any such fees after the date hereof in accordance with such Commitment Letters). As of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding valid and enforceable obligations of Parent in full force and Merger Sub, effect and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, which (with or without notice, lapse of time or both, ) would constitute a default or breach thereunder on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Sub. As of the date of this Agreementhereof, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates no knowledge of any member of the Equity Provider Group facts or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms circumstances that could reasonably be expected to prevent result in (i) any of the conditions set forth in the Commitment Letters not being satisfied to the extent such conditions can be satisfied by, or otherwise hinderare under the control of, Parent or Merger Sub or (ii) such provider from providing or seeking the funding contemplated in the Commitment Letters not being made available to provide such financing Parent on a timely basis in order to any third party in connection with a transaction relating to consummate the transactions contemplated by this Agreement. Except for inaccuracies caused by the Company or its Subsidiaries Subsidiaries, neither the Parent nor the Merger Sub has, as of the date hereof, been informed by any person that is a financing source that is a party to any Commitment Letter of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Commitment Letters inaccurate in any material respect or that would cause the commitments provided in such Commitment Letters to be terminated or ineffective or any of the conditions contained therein not to be met.
(including d) The aggregate proceeds contemplated by the Commitment Letters, if and when funded in connection accordance with the making of any Takeover Proposal))Commitment Letters, in the case of clauses (i) and (ii), in connection together with the available cash of the Company, will be sufficient for Parent and the Surviving Corporation to pay the aggregate Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted Consideration pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger and to pay all related fees and expenses.
(e) Parent and Merger Sub nor any member of are not entering into the Equity Provider Group has caused transactions contemplated by this Agreement with the actual intent to hinder, delay or induced any Person to take any action that, if taken by Parent, Merger Sub defraud either present or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)future creditors.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, complete and correct and complete copies, as of the date of this Agreement, signed counterparts of (i) executed debt commitment letters (by and between SBEV and Wachovia Bank, National Association on the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”one hand, and collectively SBEV and CapitalSource Finance LLC, on the “Equity Provider Group”) other, pursuant to providewhich the lenders party thereto have agreed, subject to the terms and conditions set forth therein, equity to provide or cause to be provided, debt financing in connection with the aggregate amount set forth therein transactions provided for herein (being collectively referred to together with the updates thereto, as contemplated herein, the “Equity FinancingDebt Commitment Letters”), ) and (ii) executed the equity commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreementhereof, from by and between SBEV and Rxxxx Xxxxxx, pursuant to which Mx. Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to providehas agreed, subject to the terms and conditions set forth therein, debt to provide, equity financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the transactions provided for herein to SBEV (together with the updates thereto, as contemplated herein, the “Equity Funding Letters and Commitment Letter” and, together with the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereofLetters, the Equity Funding Letters and “Commitments”). Subject to such amendments to which the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into Company provides its prior written consent or for which such consent is not required pursuant to Section 5.5(a)) 6.14, such consent not to be unreasonably withheld, the Commitments have not been amended and are (solely to the valid, binding and enforceable obligations Knowledge of Parent and Merger Sub, and to in the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy case of the representations Debt Commitment letters) in full force and warranties effect. The Commitments are subject to no contingencies or conditions other than those set forth in Article 3 and performance by the Company of its obligations under Section 5.2, copies thereof delivered to the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesCompany. As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of SBEV, Parent or Merger Sub under the Equity Funding Letters any term or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect condition of the inaccuracy of the representations and warranties in Article 3Commitments. As of the date of this Agreement, Parent does not have any has no reason to believe that it or SBEV will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it or SBEV contained in the Commitments. Parent or SBEV has fully paid any and all commitment fees and other fees required by the Commitments to be paid as of the conditions date hereof. Subject to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date terms and conditions of the Closing; provided that Commitments and this Agreement, the Commitments would provide Parent is not making any representation regarding and SBEV with financing at the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company Effective Time sufficient to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of consummate the Equity Provider Group or Merger upon the terms contemplated by this Agreement, (ii) entered into an agreement, arrangement effect any other repayment or understanding with any bank or investment bank or other potential provider refinancing of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), contemplated in connection with the Merger or the other TransactionsCommitments, except, in the case of clause and (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)iii) pay all related fees and expenses.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, complete and correct and complete copies, as of the date of this Agreement, copies of (i) executed commitment letters the Commitment Letter dated May 15, 2011 between Parent and KeyBank National Association (the “Equity Funding LettersLoan Commitment Letter”) from Silver Lake Partners III), L.P. pursuant to which KeyBank National Association has agreed, upon the terms and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof, equity financing in to lend the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses and the refinancing of any outstanding indebtedness of the Company and (being ii) the Commitment Letter dated May 15, 2011 among Parent, Xxxxxxxxx Group, Inc. and Key Capital Corporation (the “Notes Commitment Letter”; together with the Loan Commitment Letter, the “Commitment Letters”), pursuant to which Xxxxxxxxx Group, Inc. and Key Capital Corporation (Key Bank National Association, Xxxxxxxxx Group, Inc. and Key Capital Corporation are collectively referred to as the “Equity Financing Sources”) have agreed, upon the terms and subject to the conditions thereof, to purchase senior secured notes to be issued by Parent in the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses and the refinancing of any outstanding indebtedness of the Company (the “Debt Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of . The Commitment Letters have not been amended or modified prior to the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Commitment Letters have not been withdrawn or rescinded in any respect. Except for (i) a fee letter relating to fees with respect to the Loan Commitment Letter, as of the date hereof, and (ii) a fee letter relating to fees with respect to the Notes Commitment Letter and an engagement letter with respect to the Notes Commitment Letter, each dated as of the date hereof, there are no side letters or other agreements, Contracts or arrangements related to the funding or investing, as applicable, of the Debt Financing other than as expressly set forth in the Commitment Letters. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Financing that are payable on or prior to the date hereof hereof, and, as of the date hereof, the Equity Funding Commitment Letters are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Commitment Letters (orFinancing, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties than as expressly set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreementhereof, 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 Parent, Merger Sub Sub, Merger LLC or, to the knowledge of Parent, any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that . Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any has no reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereundersatisfied. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of and Merger LLC will have at and after the Equity Provider Group has Closing funds sufficient to (i) retained any financial advisor on an exclusive basis other than Affiliates pay the aggregate amount of any member Merger Consideration payable to holders of the Equity Provider Group or Company Shares, Company Stock Options and Company Restricted Shares pursuant to Sections 2.1 and 2.2, (ii) entered into an agreementpay any and all fees and expenses required to be paid by Parent, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to Merger Sub, Merger LLC, the Surviving Corporation and the Surviving Company or its Subsidiaries (including in connection with the making Merger, the LLC Merger and the Debt Financing, (iii) pay for any refinancing of any Takeover Proposal)), in outstanding indebtedness of the case of clauses (i) Company contemplated by the Commitment Letters and (ii), in connection with the Merger or iv) satisfy all of the other Transactions, except, in the case payment obligations of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by ParentSub, Merger Sub or any member of LLC, the Equity Provider Group, would be a breach of, or would cause to be untrue, any of Surviving Corporation and the representations in this Section 4.5(b)Surviving Company contemplated hereunder.
Appears in 1 contract
Financing. (a) 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 of this AgreementAgreement (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 (i) executed commitment letters (this Agreement in compliance with Section 5.10, the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, the Sponsor providing for an “Equity Provider”, and collectively the “Equity Provider Group”) to provideequity investment in Parent, subject to the terms and conditions therein, equity financing in cash in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), ) and (iib) a fully executed commitment letters letter and fee letter (other than any information to be redacted forms of fee letters, pursuant to the terms thereof) dated as of on or about the date of this AgreementAgreement 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 Xxxxxx Xxxxxxx Senior Fundingtime to time after the date of this Agreement in compliance with Section 5.10, Inc.collectively, Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersLetter” and, together with the Equity Funding LettersCommitment Letter, the “Financing Letters”) to provide), providing, subject to the terms and conditions therein, for debt financing in an aggregate amount the amounts set forth therein (being collectively referred to as the “Debt Financing”” and, and together with the Equity Financing Financing, collectively referred to as the “Financing”). As of the date hereofof this Agreement, none of the Equity Funding Letters or Debt Commitment Financing Letters has been amended or modified, and, to the Knowledge of Parent, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in such letters have not been withdrawn withdrawn, terminated or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof respect and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties theretono such withdrawal, termination or rescission is contemplated. Assuming (i) the Financing is funded in accordance with the Financing Letters and assuming (ii) the accuracy satisfaction of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2Offer Conditions, the net proceeds contemplated by the Equity Funding Financing Letters (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) provided under the Debt Commitment Letters willLetter), together with Company cash, will in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or Agreement, the Equity Funding Letters Commitment Letter or the Debt Commitment LettersLetter) and any other amounts required to be paid in connection with the consummation of the Transactions (including all amounts payable in respect of Company Equity Awards under this Agreement) and to pay all related fees Expenses payable on the Closing Date by them in connection with the Transactions (such amount collectively, the “Required Amount”). As of the date of this Agreement, the Financing Letters are (x) legal, valid and expensesbinding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, (y) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, in each case subject to the Enforceability Exceptions and (z) in full force and effect. As of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub or, to the Knowledge of Parent, any other parties thereto under the Equity Funding Letters Commitment Letter or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect Letter. Assuming satisfaction or waiver of the inaccuracy of conditions to Parent’s and Merger Sub’s obligations to consummate the representations Offer and warranties in Article 3. As of the date of this AgreementMerger, Parent does not have any reason to believe that any of the conditions to precedent set forth in the Financing Letters will not be satisfied or that the Financing Required Amount will not be available on the Closing Date. The only conditions precedent (including the market “flex” provisions) related to the obligations of the Guarantor to fund the full amount of the Equity Financing and the lenders to fund the full amount of the Debt Financing are those expressly set forth in the Equity Commitment Letter and the Debt Commitment Letter, respectively. There are no side letters or other Contracts or arrangements (except for a customary fee letter, fee credit letter and engagement letter) to which Parent or Merger Sub any of its Affiliates is a party related to the Financing other than as expressly contained in the Financing Letters delivered to the Company prior to the date of 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 original issue discount contemplated by the Financing Letters on the date of this Agreement) such that the Closing; provided that Parent is not making any representation regarding the inaccuracy aggregate amount of the representations and warranties set forth in Article 3Financing would be below the amount required to pay the Required Amount, (C) impose new or additional conditions precedent to the failure of the Company to perform its obligations hereunder. The Financing Letters contain all Financing, (D) otherwise adversely modify any of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (iiE) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (prevent, impair or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to delay the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member consummation of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Financing.
Appears in 1 contract
Samples: Merger Agreement (Air Methods Corp)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) an executed commitment letters letter (the “Equity Funding LettersLetter”) from Silver Lake Partners IIIGreen Equity Investors V, L.P. and TPG Partners Green Equity Investors Side V, L.P. (each, collectively the “Equity Providers” and each an “Equity Provider”, and collectively the “Equity Provider Group”) to provideeach purchase for cash, in each case subject to the terms and conditions therein, equity financing securities of Parent in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of Redacted Fee Letter from the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. financial institutions identified therein (the “Debt Commitment Letters” and, together with the Equity Funding LettersLetter, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount the amounts set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters Letter or the Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective obligations and commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters Letter and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Financing Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent and Merger Sub, and and, with respect to the Knowledge Equity Funding Letter, each of Parentthe Guarantors, as the case may be, subject to the Bankruptcy and Equity Exception. As of the date hereof, there are no conditions precedent or other parties theretocontingencies related to the funding of the full amount of the Financing, other than as expressly set forth in or expressly contemplated by the Financing Letters (including any “market flex” provisions applicable to the Financing Letters). Assuming (i) the Financing is funded in accordance with the Equity Funding Letter and assuming the Debt Commitment Letters, as applicable, (ii) the accuracy in all material respects of the representations and warranties set forth in Article 3 III (without giving effect to any materiality or “Material Adverse Effect” qualifications or any Knowledge qualifications) and (iii) the performance by the Company of its obligations under Section 5.25.1, as of the date hereof, the net proceeds contemplated by the Equity Funding Letters Letter and the Debt Commitment Letters will, together with Company cash, in the aggregate aggregate, be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Designated Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Financing Letters) and any other amounts required to be paid by Parent and Merger Sub in connection with the consummation of the Transactions and to pay all related fees and expensesTransactions. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub Sub, under the Equity Funding Letters Letter or the Debt Commitment Letters; provided that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations and warranties in Article 3III. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties set forth in Article 3III, or the failure of compliance by the Company to perform of its obligations hereunder. The Financing Letters contain all As of the conditions precedent date of this Agreement, there are no side letters or other agreements, Contracts or arrangements to which Parent or any of its Affiliates is a party related to the obligations funding or investing, as applicable, of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member full amount of the Equity Provider Group has Financing other than (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of as expressly set forth in the Equity Provider Group or Financing Letters, (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hindercustomary engagement letter(s) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)and non-disclosure agreements(s), in the case of clauses (i) and (ii), in connection with iii) as do not impact the Merger conditionality or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member aggregate amount of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Financing.
Appears in 1 contract
Samples: Merger Agreement (Jo-Ann Stores Inc)
Financing. (a) Parent The Buyer affirms that it is not a condition to the Closing or to any of its other obligations under this Agreement that the Buyer obtain financing for or related to any of the Transactions. The Buyer has delivered to the Company Seller true, correct and complete copiescopies of (a) the executed debt commitment letter, dated as of the date of this Agreementhereof, of (i) executed commitment letters (together with all exhibits, annexes, schedules and attachments thereto, the “Equity Funding LettersDebt Commitment Letter” and together with the fee letter related thereto, the “Debt Commitment Papers”) from Silver Lake Partners IIIthe Debt Financing Sources specified therein and the fee letter related thereto, L.P. which may be redacted solely with respect to fees, “flex” and TPG Partners Veconomic terms, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereinthereof, equity financing in such Debt Financing Sources have committed to lend the aggregate amount amounts set forth therein to the Buyer for the purpose of funding the Transactions (being collectively referred to as the “Equity Debt Financing”), and (iib) the executed equity commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. hereof (the “Debt Equity Commitment LettersLetter” and, together with the Equity Funding LettersDebt Commitment Papers, the “Financing LettersCommitments”) from certain funds affiliated with Siris Capital Group, LLC pursuant to providewhich, and subject to the terms and conditions thereinthereof, debt financing in an aggregate amount such funds have committed to invest the amounts set forth therein (being collectively referred to as the “Debt Equity Financing”” and, and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). None of the Financing Commitments has been amended or modified prior to the date hereof, no such amendment or modification is contemplated as of the date hereof (except with respect to any “market flex” terms contained in the Debt Commitment Papers provided as of the date hereof), and the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect as of the date hereof (and no such withdrawal or rescission is contemplated as of the date hereof). As of the date hereof, none there are no side letters or other contracts or arrangements that could affect the amount, availability or conditions of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and Financing Commitments other than as expressly set forth in the respective commitments contained in such letters have not been withdrawn or rescinded in any respectFinancing Commitments furnished pursuant to this Section 6.9. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as As of the date hereof, the Equity Funding Letters Financing Commitments are not subject to any conditions precedent or other contingencies relating to the funding of the full amount of the financing thereunder other than as set forth in the Financing Commitments delivered to the Buyer and, on the date hereof, are binding and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) in full force and effect and are the validlegal, valid (assuming due authorization, execution and delivery by the other parties thereto), binding and enforceable obligations of Parent and Merger Subthe Buyer and, and to the Knowledge of Parentthe Buyer, each of the other parties thereto, as the case may be, except as such enforceability may be limited by (a) applicable insolvency, bankruptcy, reorganization, moratorium or other similar laws affecting creditors’ rights generally, and (b) applicable equitable principles (whether considered in a proceeding at law or in equity). Assuming the Financing is funded All commitments and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts fees required to be paid in connection with under the consummation of the Transactions and Financing Commitments prior to pay all related fees and expenses. As of the date of this Agreement, no hereof have been paid in full. No event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent the Buyer under any term or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect condition of the inaccuracy of Financing Commitments. Assuming the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason to believe that any satisfaction of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 38, or to the failure Knowledge of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent Buyer, there exists no fact or occurrence existing on the terms therein.
(b) Neither Parentdate hereof that, Merger Sub nor any member with or without notice, lapse of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group time or (ii) entered into an agreementboth, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, make any of the representations assumptions or any of the statements set forth in this Section 4.5(b)the Financing Commitments inaccurate, (ii) result in any of the terms or conditions in the Financing Commitments not being satisfied, (iii) cause the Financing Commitments to be ineffective or (iv) otherwise result in the Financing Commitments not being available on a timely basis in order to consummate the Transactions. Assuming the satisfaction of the conditions set forth in Article 8, the net proceeds from the Financing Commitments along with any additional equity financing provided by the Buyer will be sufficient to consummate the Transactions, including the payment by the Buyer of all payment obligations hereunder due and owing on the Closing Date. The Buyer has not incurred any obligation, commitment, restriction or liability of any kind, in each case, which would reasonably be expected to impair or adversely affect the availability of such proceeds for such uses.
Appears in 1 contract
Financing. (a) Parent The Buyer has delivered to the Company true, correct Sellers a true and complete copies, as copy of the executed Debt Commitment Letter and the related Debt Fee Letters as in effect on the date hereof (with, in the case of this Agreementthe Debt Commitment Letter and any related Debt Fee Letter, of (i) executed commitment letters (only the “Equity Funding Letters”) from Silver Lake Partners IIIfee amounts, L.P. and TPG Partners Vinterest rates, L.P. (each, an “Equity Provider”original issue discount, and collectively economic and other economic “market flex” terms redacted, none of which redacted provisions would be reasonably expected to adversely affect the “Equity Provider Group”) amount or availability of the Debt Financing on the Closing Date). Neither the Buyer nor any of its Affiliates has entered into any agreement, side letter or other arrangement relating to providefunding of the Debt Financing, subject to the terms and conditions therein, equity financing other than as set forth in the aggregate amount Debt Commitment Letter and the Debt Fee Letter (including any “market flex” provisions set forth therein therein).
(being collectively referred to as the “Equity Financing”), and (iib) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Commitment Letter have not been withdrawn or rescinded in any respect. Parent As of the date hereof, the Debt Commitment Letter is in full force and effect against the Buyer and represents a valid, binding and enforceable obligation of the Buyer and, to the Buyer’s knowledge, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or Merger Sub waiver of the conditions set forth in the Debt Commitment Letter as of the date hereof and except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Authority before which any proceeding seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity). The Buyer has fully paid (or caused to be fully paid) any and all commitment fees or and other fees in connection with the Equity Funding Letters and the Debt Commitment Letters amounts that are due and payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesDebt Financing. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent Buyer or Merger Sub any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding Letter. Assuming the effect satisfaction of the inaccuracy of conditions set forth in Section 8.1 and 8.3, the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any Buyer has no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis any term of the Debt Commitment Letter. The only conditions precedent or other contingencies related to the funding of the Debt Financing on the Closing Date that will be included in any debt financing documents shall be the conditions set forth in the Debt Commitment Letter as of the date hereof, as the Debt Commitment Letter may be modified in accordance with Section 6.19(b)(i). Assuming the satisfaction of the conditions set forth in Section 8.1 and 8.3, the Buyer has no reason to the Financing believe that (A) any of such conditions will not be satisfied or that (B) the Debt Financing will not be made available to Parent or Merger Sub Buyer on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinClosing Date.
(bc) Neither ParentThe Buyer will have at the Closing access to sufficient immediately available funds to permit the Buyer to consummate the Transactions, Merger Sub nor and to pay all related fees and expenses. Notwithstanding anything to the contrary contained herein, the Buyer acknowledges and agrees that its obligations to consummate the Transactions are not contingent upon its ability to obtain any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (financing, including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Debt Commitment Letter.
Appears in 1 contract
Samples: Transaction Agreement (Allegion PLC)
Financing. (a) Parent has delivered to the Company a true, complete and correct and complete copiescopy of the executed debt commitment letter, dated as of the date hereof among Parent, Bank of this AgreementAmerica N.A. and Xxxxxxx Lynch, of (i) executed commitment letters Pierce, Xxxxxx & Xxxxx Incorporated (the “Equity Funding LettersFinancing Commitments”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto have committed, subject to the terms and conditions set forth therein, equity financing in to lend the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as including funding of the date Payment Fund) and related fees and expenses and the refinancing of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. outstanding indebtedness of the Company (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As None of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modifiedmodified prior to the date of this Agreement, no such amendment or modification is contemplated, and as of the date hereof, the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. Parent or Merger Sub Except for the fee letter referenced in the Financing Commitment (a true, complete and correct copy of which has fully paid any been provided to the Company, with only fee amounts and all commitment fees certain economic terms of the market flex and securities demand redacted), as of the date hereof there are no side letters or other fees agreements, Contracts or arrangements related to the funding of the Financing other than as expressly set forth in connection with the Equity Funding Letters and Financing Commitments delivered to the Debt Commitment Letters that are payable on or Company prior to the date hereof hereof. The Financing Commitments have been duly authorized, executed and delivered by Parent and, as of the date hereof, the Equity Funding Letters Financing Commitments are in full force and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) effect and are the legal, valid, binding and enforceable obligations of Parent and Merger Sub, and as the case may be, and, to the Knowledge knowledge of ParentParent and Merger Sub, each of the other parties thereto. No event has occurred that would constitute a breach or default (or with notice or lapse of time or both would constitute a default) by Parent or Merger Sub under the Financing Commitments, or, to the knowledge of Parent and Merger Sub, any other parties to the Financing Commitments. 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. All commitment and other fees required to be paid on or prior to the date hereof under the Financing Commitments have been paid and, assuming the satisfaction of the conditions precedent to Parent’s, Merger Sub’s and the Company’s obligations hereunder, neither Parent nor Merger Sub has any 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 or Merger Sub on the Closing Date.
(b) Assuming (A) the Financing is funded and assuming in accordance with the Financing Commitments, (B) the accuracy of the representations and warranties set forth in Article 3 Section 3.2 and (C) the performance by the Company of its obligations under Section 5.2this Agreement, the net proceeds contemplated by of the Equity Funding Letters and Debt Commitment Letters willFinancing Commitments, together with Company cashthe cash on hand of Parent and the Company, will in the aggregate be sufficient for Parent, Merger Sub and the Surviving Corporation to (i) pay the aggregate Merger Consideration, Option Consideration (ii) pay any and RSU Consideration all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing, (and iii) pay for any other repayment or refinancing of debt any outstanding indebtedness of the Company contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment LettersFinancing Commitments and (iv) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain satisfy all of the conditions precedent to the other payment obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of and the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Surviving Corporation contemplated hereunder.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event Buyer has occurred whichreceived an executed debt commitment letter (“Commitment Letter”) and each fee letter (the “Fee Letters”) dated as of the date hereof (collectively, with or without noticethe “Debt Commitment Letter”) from the Debt Financing Sources identified therein, lapse of time or bothpursuant to which the Debt Financing Sources have committed, would constitute a default or breach on the part of Parent or Merger Sub under terms and subject to (and only to) the Equity Funding Letters or conditions set forth therein, to provide to Buyer the Debt Financing in cash in the aggregate principal amount set forth in the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect Letter. A true and complete copy of the inaccuracy fully executed Commitment Letter (including all exhibits, schedules and annexes thereto) as in effect on the date hereof has been provided to the Company. A true and complete copy of each fully-executed Fee Letter related to the Commitment Letter (including all exhibits, schedules and annexes thereto) as in effect on the date hereof has been provided to the Company, except that economic and “market flex” terms specified therein may have been redacted (none of which redacted provisions could adversely affect the availability, conditionality, enforceability, termination or aggregate principal amount of the representations Debt Financing at the Closing). Buyer has fully paid any and warranties all commitments or other fees required by the Debt Commitment Letter to be paid on or before the date hereof, and Buyer will, directly or indirectly, continue to pay in Article 3. As full any such amounts required to be paid as and when they become due and payable on or prior to the Closing Date; provided, however, that any payment due and payable on the Closing Date may be funded contemporaneously with the Closing and subject to the satisfaction of the date other funding conditions in respect of this Agreementthe Debt Financing on the Closing Date. The Debt Commitment Letter is valid and binding and in full force and effect, Parent enforceable against Buyer and, to Buyer’s Knowledge, against each other party thereto, except as such enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other Laws affecting the rights of creditors generally and (b) principles of equity, whether considered at law or in equity. There are no conditions precedent or other contingencies to the obligations of the parties to make the Debt Financing available on the terms contemplated by the Debt Commitment Letter, other than as expressly set forth in the Debt Commitment Letter, and Buyer does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Parent or Merger Sub Buyer on the date Closing Date. None of the Closing; provided that Parent is not making commitments contained in the Debt Commitment Letter has been withdrawn or rescinded in any representation regarding respect. Neither Buyer nor any of its Affiliates has entered into any agreement, side letter or other arrangement relating to conditionality with respect to the inaccuracy Debt Financing, other than as set forth in the Debt Commitment Letter. No Debt Financing Source has notified Buyer or any of its Affiliates of such Debt Financing Source’s intention to terminate or withdraw any of the Debt Financing. Assuming the Debt Financing is funded in accordance with the terms of the Debt Commitment Letter, and assuming the accuracy of the Company’s representations and warranties set forth in Article 3, or herein and the failure compliance by the Company of the Company covenants set forth herein, Buyer will have as of the Closing Date, sufficient readily available funds with which to perform its obligations hereunderpay the Purchase Price and consummate the transactions contemplated by this Agreement. The Financing Letters contain all ability of Buyer to consummate the conditions precedent transactions contemplated by this Agreement is not subject to any condition or contingency with respect to the obligations of the parties thereunder to make Debt Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, other financing for or would cause related to be untrue, any of the representations in this Section 4.5(b)transactions contemplated hereby.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Infrastructure & Energy Alternatives, Inc.)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) true and complete copies of executed commitment letters written commitments (as the same may be amended pursuant to Section 6.14, the “Equity Funding LettersDebt Financing Commitments”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto have agreed, subject only to the terms and conditions set forth therein, equity to provide or cause to be provided to Parent and/or Merger Sub debt financing and continue to make available to the Company a revolving credit facility in the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses and the Company’s ongoing operating expenses (being collectively referred to as the “Equity Debt Financing”), ) and (ii) true and complete copies of an executed written commitment letters and redacted forms of fee letters(collectively, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersEquity Financing Commitment” and, and together with the Equity Funding LettersDebt Financing Commitments, the “Financing LettersCommitments”) ), pursuant to providewhich the party thereto has agreed, subject only to the terms and conditions set forth therein, debt to provide or cause to be provided to Parent and/or Merger Sub equity financing in an aggregate amount the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses (being collectively referred to as the “Debt Equity Financing”, ” and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). As of the date hereofof this Agreement, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded rescinded. As of the date of this Agreement, the Financing Commitments are in any respectfull force and effect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Financing Commitments that are due and payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensestherewith or pursuant thereto. As of the date of this Agreement, 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 the Financing Commitments. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing Commitments. As of the date of this Agreement, neither Parent does not have nor Merger Sub is aware of any reason to believe that any of why the conditions to set forth in the Financing will Commitments would not be satisfied on or that before the Closing Date. Subject to the terms and conditions of the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations Commitments, and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent subject to the obligations terms and conditions of this Agreement, the parties thereunder to make aggregate proceeds contemplated by the Financing available to Parent Commitments, together with the cash on the terms therein.
(b) Neither hand of Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to and the Company or its Subsidiaries (including in connection with on the making of any Takeover Proposal))Closing Date, in the case of clauses (i) will be sufficient for Parent and (ii), in connection with Merger Sub to consummate the Merger or upon the other Transactions, except, in terms contemplated by this Agreement and to pay the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted aggregate Per Share Merger Consideration payable pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)4.1(a) hereof.
Appears in 1 contract
Samples: Merger Agreement (Sm&A)
Financing. (a) Parent Concurrently with the execution of this Agreement, Buyer has delivered to Seller true and correct copies of fully executed commitment letters (the Company true“Debt Commitment Letters”) providing the terms and conditions upon which the issuers thereof (collectively, correct the “Lenders”) have committed to provide the full amount of debt financing required in connection with this Agreement (the “Debt Financing”). The Debt Commitment Letters are in full force and complete copies, effect as of the date of this Agreement, . The obligations to fund the full amount of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively commitments under the “Equity Provider Group”) to provide, Debt Commitment Letters are not subject to the terms and any conditions therein, equity financing other than as set forth in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated Debt Commitment Letters. There is no fact or occurrence existing as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (Agreement that makes any of the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount assumptions or statements set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters inaccurate or that are payable causes the Debt Commitment Letters to be ineffective with respect to Buyer or that precludes or is reasonably likely to preclude the satisfaction of the conditions set forth in the Debt Commitment Letters. All commitment and other fees required to be paid under the Debt Commitment Letters on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinbeen paid.
(b) Neither ParentSubject to its terms and conditions, Merger Sub nor any member the Debt Financing, when funded in accordance with the Debt Commitment Letters, will provide Buyer with funds sufficient on the Closing Date to consummate the transactions contemplated by this Agreement on the terms contemplated hereby, including, for the avoidance of doubt, to pay the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party Purchase Price and all related fees and expenses payable by Buyer in connection with a transaction relating to this Agreement and the Company or its Subsidiaries (including in connection with transactions contemplated hereby at the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Closing.
Appears in 1 contract
Samples: Asset Contribution and Equity Purchase Agreement (West Corp)
Financing. Section 4.5 of the Parent Disclosure Schedule sets forth true, accurate and complete copies of (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) executed equity commitment letters to provide equity financing to Parent and/or Merger Sub and (b) an executed debt commitment letter and related term sheets (the “Equity Funding LettersDebt Commitment Letter” and together with the equity commitment letters described in clause (a), the “Financing Commitments”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions thereof, certain lenders and their affiliates have committed to provide and arrange the financings described therein, equity financing in the aggregate amount set forth therein (being collectively referred proceeds of which may be used to as consummate the “Equity Financing”), Merger and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of other transactions contemplated by this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Agreement (the “Debt Commitment LettersFinancing” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively equity financing referred to as in clause (a), the “Financing”). As of the date hereofof this Agreement, none of (i) the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, Financing Commitments are in full force and the respective commitments contained in such letters effect and have not been withdrawn or rescinded terminated or otherwise amended or modified in any respect. respect (except as permitted by this Agreement) and (ii) neither Parent or nor Merger Sub has fully paid is in breach of any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties terms or conditions set forth in Article 3 therein and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would could reasonably be expected to constitute a default breach or breach on failure to satisfy a condition precedent set forth in the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing Commitments. As of the date of this Agreement, subject to the accuracy of the representations and warranties of the Company set forth in Article III hereof, and the satisfaction of the conditions set forth in Sections 6.1 and 6.3 hereof, neither Parent does not have nor Merger Sub has any reason to believe that it will be unable to satisfy the conditions of closing to be satisfied by it set forth in the Financing Commitments on the Closing Date. Assuming the funding of the Financing in accordance with the Financing Commitments, the proceeds from such Financing constitute all of the financing required for the consummation of the transactions contemplated by this Agreement, and, together with cash on hand from operations of the Company (assuming for such purposes that, as of the Closing Date, such cash on hand will equal $50 million and outstanding indebtedness for borrowed money (excluding guarantees) will equal $308 million), 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 Award Consideration (and any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation). All of the conditions precedent to the obligations of the lenders under the Debt Commitment Letter to make the Debt Financing will not be satisfied or that the Financing will not be available to Parent or and/or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties are set forth in Article 3the Debt Commitment Letter, or and the failure of the Company to perform its obligations hereunder. The Financing Letters contain equity commitment letter contains all of the conditions precedent to the obligations of the parties thereunder funding party to make Financing the equity financing thereunder available to Parent and/or Merger Sub on the terms therein.
(b) Neither Parent. Notwithstanding anything in this Agreement to the contrary, one or more Debt Commitment Letters may be amended, modified, supplemented, restated or superseded at the option of Parent and Merger Sub nor after the date hereof but prior to the Effective Time (the “New Financing Commitments”); provided that the terms of any member of the Equity Provider Group has New Financing Commitment shall not (i) retained any financial advisor on an exclusive basis other than Affiliates of any member reduce the aggregate amount of the Equity Provider Group or Financing, (ii) entered into an agreement, arrangement or understanding with expand upon the conditions precedent to the Financing as set forth in the Debt Commitment Letter in any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms respect that could would reasonably be expected to prevent make such conditions less likely to be satisfied, or (iii) reasonably be expected to delay the Closing. In such event, the terms “Debt Commitment Letter” and “Financing Commitments” as used herein shall be deemed to include the Debt Commitment Letters that are not so amended, modified, supplemented, restated or otherwise hinder) such provider from providing or seeking superseded at the time in question and the New Financing Commitments to provide such financing to any third party the extent then in connection with a transaction relating effect. Parent has also delivered to the Company or its Subsidiaries a guarantee (including in connection with each, a “Guarantee”) addressed to the making Company from each of any Takeover Proposal))(x) Cxxxxxxxx Partners VI, in the case of clauses (i) L.P. and Cxxxxxxxx Partners VI, Offshore, L.P. and (ii)y) Bxxx Capital Fund IX, L.P. (collectively, the “Guarantors”) with respect to certain matters on the terms specified therein. Each Guarantee is in connection with the Merger or the other Transactionsfull force and effect and is a legal, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member valid and binding obligation of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Guarantor subject thereto.
Appears in 1 contract
Financing. (a) Parent has delivered binding written commitments, addressed to the Company trueParent or Sub, correct and complete copies, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersone or more financially responsible financial institutions, dated as of November 18, 1997, true and complete copies of which have been furnished to the date of this AgreementCompany (collectively, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and"Commitments") to obtain, together with the Equity Funding Letters, the “Financing Letters”) other funds to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of be provided by Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation financing necessary to pay the aggregate Merger ConsiderationCash Election Price with respect to each Share outstanding at the Effective Time (other than Electing Shares), Option Consideration and RSU Consideration to pay (and any other repayment or refinancing of debt provide the funds for the Company to pay) all amounts contemplated by Section 2.2 when due, to refinance any indebtedness or other obligation of the Company and its Subsidiaries which may become due as a result of this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and transactions contemplated hereby, to pay all related fees and expenses. As expenses and to provide for the anticipated working capital needs of the Surviving Corporation following the Merger (the financing necessary to provide such funds being hereinafter referred to as the "Financing"), which Commitments are in full force and effect as of November 18, 1997. 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 the Commitments. Subject to the terms and conditions of this Agreement and receipt of the proceeds of the Financing as set forth in the Commitments (or on other terms reasonably satisfactory to Parent), at the closing of the Merger, Parent will capitalize Sub with an aggregate equity contribution of at least $117.5 million. Parent will be under no obligation pursuant to the preceding sentence unless and until the proceeds of the Financing are received as set forth in the Commitments. In addition, Parent will be under no obligation under any circumstances to capitalize Sub with equity of more than $117.5 million."
SECTION 2.8. Section 5.2(a) of the Merger Agreement shall be amended and restated in its entirety, and shall be replaced by the following:
(a) The Company shall, and shall direct and cause its officers, directors, employees, representatives and agents to, immediately cease any discussions or negotiations with any parties that may be ongoing with respect to a Takeover Proposal (as hereinafter defined). The Company shall not, nor shall it permit any of its Subsidiaries to, nor shall it authorize or permit any of its officers, directors or employees or any investment banker, financial advisor, attorney, accountant or other representative or agent retained by it or any of its Subsidiaries to, directly or indirectly, (i) solicit, initiate or knowingly encourage (including by way of furnishing information) any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Takeover Proposal or (ii) participate in any discussions or negotiations regarding any Takeover Proposal; provided, however, that if, at any time prior to the receipt of the Company Stockholder Approval, the Board of Directors of the Company determines in good faith, after consultation with outside counsel, that it would be consistent with its fiduciary responsibilities to the Company's stockholders under applicable law, the Company may, in response to a Takeover Proposal which was not solicited subsequent to the date hereof, (x) furnish information with respect to the Company to any person pursuant to a confidentiality agreement substantially identical to the Confidentiality Agreement (as defined in Section 6.2 hereof) and (y) participate in discussions, investigations and/or negotiations regarding such Takeover Proposal. The Company will promptly notify Parent in the event of the occurrence of any matter referred to in the foregoing proviso. For purposes of this Agreement, no event has occurred which"Takeover Proposal" means any inquiry, with proposal or without notice, lapse offer from any person relating to any direct or indirect acquisition or purchase of time 25% or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect more of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure aggregate assets of the Company to perform and its obligations hereunder. The Financing Letters contain all Subsidiaries, taken as a whole, or 25% or more of the conditions precedent to the obligations voting power of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor shares of Common Stock then outstanding or any member tender offer or exchange offer that if consummated would result in any person beneficially owning 25% or more of the Equity Provider Group has (i) retained voting power of the shares of Common Stock then outstanding or any financial advisor on an exclusive basis merger, consolidation, business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken transactions contemplated by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Agreement."
Appears in 1 contract
Financing. (a) 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, as amended, modified, waived, supplemented, extended or replaced in accordance with the terms therein and herein, collectively, the “Commitment Letter”), pursuant to which the Financing Sources have committed, subject solely to the terms and conditions expressly set forth in the Commitment Letter, to lend to the Subsidiaries of Parent named therein (the “Borrowers”) the amounts set forth therein for, among other things, the purposes of the Financing. As of the date hereof, 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 date of this Agreement, to the knowledge of Parent, no such commitment provided for in the Commitment Letter has been withdrawn, terminated, repudiated, rescinded, amended, supplemented or modified, in any respect, and no such withdrawal, termination, repudiation, rescission, amendment, supplement or modification is contemplated other than as set forth in the Commitment Letter with respect to the Parent’s ability to add additional arrangers thereunder. Neither Parent, nor, to the knowledge of Parent, any other counterparty thereto has committed any material breach of any of its covenants or other obligations set forth in, or is in default under, the Commitment Letter, and, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no 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 or Merger Sub any Person under the Equity Funding Letters Commitment Letter, (b) constitute or the Debt Commitment Letters; provided that Parent is not making result in a failure to satisfy any representation regarding the effect of the inaccuracy terms or conditions set forth in the Commitment Letter, (c) make any of the representations and warranties assumptions or any of the statements set forth in Article 3the Commitment Letter inaccurate in any material respect or (d) otherwise result in any portion of the Financing not being available. As of the date of this Agreement, assuming satisfaction or waiver of the conditions set forth in Section 9.1 and Section 9.2 and the compliance in all material respects by the Company 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 of the conditions term or condition to the Financing will not be satisfied by it contained in the Commitment Letter or that the Financing full amounts committed pursuant to the Commitment Letter will not be available to Parent or Merger Sub on the date as of the Closing; provided that Parent is not making any representation regarding Closing if the inaccuracy of terms or conditions to be satisfied by them contained in the representations Commitment Letter are satisfied. There are no conditions precedent (directly or indirectly) or other conditions related to the Financing and warranties the funding thereof other than the terms thereof expressly set forth in Article 3the 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 failure Parent or any Affiliate thereof that are materially related to the funding of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has except for (i) retained any financial advisor on an exclusive basis other than Affiliates customary engagement letters, true and correct copies of any member of which have been provided to the Equity Provider Group or Company and (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to customary non-disclosure agreements which do not impact the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member conditionality of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(bFinancing).
Appears in 1 contract
Samples: Merger Agreement (WillScot Corp)
Financing. (a) Parent Merger Sub has delivered to the Company (i) true, correct and complete copies, as signed counterpart(s) of the commitment letter of Xxxxx Fargo Bank, N.A., dated the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”hereof, and collectively (ii) true, correct and complete (subject to fee amounts being redacted) signed counterparts of the “Equity Provider Group”) related fee letter of Xxxxx Fargo Bank, N.A., dated the date hereof, pursuant to providewhich Xxxxx Fargo Bank, N.A. has agreed, subject to the terms and conditions set forth therein, equity to provide up to an aggregate of $375.0 million of financing in connection with the aggregate amount set forth therein transactions contemplated hereby and an additional $75.0 million of revolving credit (being collectively referred to as the “Equity Financing”), (i) and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letterscollectively, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As The Financing Letters are in full force and effect as of the date hereof, none . The Financing Letters are subject to no contingencies or conditions other than those set forth in the copies of the Equity Funding Financing Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, delivered to the Company. Purchaser and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has have fully paid any and all commitment fees or other fees in connection with required by the Equity Funding Financing Letters and the Debt Commitment Letters that are payable to be paid by them on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Purchaser or Merger Sub under the Equity Funding Letters or the Debt Commitment Financing Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date hereof, subject to the satisfaction of this Agreementthe conditions set forth in Sections 8.1 and 8.3 (excluding Section 8.3(c)), Parent does not have any neither Purchaser nor Merger Sub believes or has reason to believe that any of the conditions to the financing set forth in the Financing Letters required to be satisfied by Purchaser or Merger Sub will not be satisfied or that any portion of the Financing financing to be made thereunder will not otherwise be made available to Parent Purchaser or Merger Sub on the date of Closing Date. Assuming the Closing; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties set forth in Article 3Section 5.4 and compliance by the Company and its Subsidiaries with their agreements set forth in Sections 7.1(a) and 7.1(b), and the satisfaction of the closing condition set forth in Section 8.3(d), the aggregate sources of funding identified in the Financing Letters and Additional Financing Letters (if applicable) as necessary to consummate the transactions contemplated by this Agreement, in the respective amounts referred to in the Financing Letters (including any direct or indirect equity contribution of Purchaser referred to therein) and the failure Additional Financing Letters (if applicable), together with the Net Proceeds (as defined in the Description of Notes) from the CMC IPO received by Purchaser (if applicable), would be sufficient to enable Merger Sub and the Company to perform its obligations hereunder. The Financing Letters contain all of pay the conditions precedent to the obligations of the parties thereunder full Cash Merger Consideration, to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis all other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), necessary cash payments by them in connection with the Merger or upon the other Transactions, exceptterms contemplated by this Agreement (including the payments required under Section 7.12 with respect to the Defeasance and/or Debt Tender Offer) and to pay all of the related fees and expenses, in each case as contemplated by the case of clause Financing Letters and Additional Financing Letters (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(cif applicable). Neither Parent, Merger Sub nor any member of The financing referred to in the Equity Provider Group has caused or induced any Person Financing Letters is herein referred to take any action that, if taken by Parent, Merger Sub or any member of as the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)“Financing.”
Appears in 1 contract
Samples: Merger Agreement (United Online Inc)
Financing. (a) Parent has delivered to Attached hereto as the Company true, “Financing Commitments Schedule” are true and correct and complete copies, as copies of the date of this Agreement, of (i) executed debt commitment letters (including the summary of terms and conditions attached thereto), each dated on or prior to the date hereof, from each of GCI Capital Markets LLC and Xxxxx Fargo Bank, National Association, and acknowledged by Purchaser (as amended, supplemented or otherwise modified or replaced from time to time, the “Equity Funding Debt Commitment Letters”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto have committed, subject only to the terms and conditions set forth therein, equity financing in to lend the aggregate amount amounts set forth therein for the purpose of financing the transactions contemplated by this Agreement. The Debt Commitment Letters are (being collectively referred i) legal, valid and binding obligations of Purchaser and Merger Sub and, to as the “Equity Financing”)Knowledge of Purchaser and Merger Sub, each of the other parties thereto and (ii) executed commitment letters enforceable in accordance with their respective terms against Purchaser and redacted forms Merger Sub and, to the Knowledge of fee lettersPurchaser and Merger Sub, dated as each of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)other parties thereto. As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective obligations and commitments contained in such letters the Debt Commitment Letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters , and the Debt Commitment Letters that are payable on in full force and effect. There are no conditions precedent or prior other contingencies related to the date hereof and, as funding of the date hereoffull amount of the Financing, the Equity Funding Letters other than as set forth in this Agreement and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties theretoLetters. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.25 in all material respects, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As as of the date of this Agreementhereof, no event has occurred or circumstance exists 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 Purchaser or Merger Sub or to the Knowledge of Purchaser and Merger Sub, any other parties thereto, under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date hereof, to Knowledge of this Agreement, Parent does not have any each of Purchaser and Merger Sub there is no reason to believe that any of the conditions to the Financing contemplated in the Debt Commitment Letters will not be satisfied or that the Debt Financing will not be made available to Parent or Purchaser and Merger Sub at the Closing. The aggregate proceeds from the Debt Financing, together with the unrestricted cash on hand of Purchaser, will be sufficient to fund all of the amounts required to be provided by Purchaser and Merger Sub for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of Purchaser’s and Merger Sub’s obligations under this Agreement, including the payment of all amounts to be paid by Purchaser and Merger Sub pursuant to Article 2 and the payment of all out-of-pocket costs and expenses of the transactions contemplated hereby to the extent payable on or prior to the Closing (including any repayment or refinancing of Indebtedness and the payment of Sellers’ Transaction Expenses as contemplated herein). Except for fee letters with respect to fees relating to the Debt Financing, of which Purchaser has delivered true, correct and complete redacted copies to the Company prior to the date hereof, there are no side letters or other agreements, contracts or arrangements related to the funding or investing, as applicable, of the Closing; provided that Parent is not making any representation regarding the inaccuracy full amount of the representations and warranties Debt Financing other than as expressly set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Debt Commitment Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating and delivered to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date prior to the extent permitted date hereof. As of the date hereof, Purchaser and Merger Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the second sentence terms of the Debt Commitment Letters. Other than as set forth on the Violations Schedule, as of the date hereof, no “Default” or “Event of Default” (as defined in the Existing Credit Agreement) has occurred as of the date hereof, and no condition equivalent to an “Event of Default” has occurred as of the date hereof and is continuing that gives rise to the rights of the lenders under the Existing Credit Agreement to accelerate the obligations thereunder. Purchaser has sufficient cash on hand or other sources of immediately available funds to enable it to make payment of the Purchaser Fee if such payment is required pursuant to Section 5.5(c7.2(c). Neither Parent, Merger Sub nor any member The payment of the Equity Provider Group has caused or induced any Person to take any action that, if taken Purchaser Fee by Parent, Merger Sub or any member of Purchaser will not result in a default under the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Existing Credit Agreement.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company truea true and correct copy of the equity commitment letter (the “Equity Financing Letter”), correct and complete copies, dated as of the date of this Agreementhereof, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake by and among Xxxxx Xxxxx Partners IIIIX, L.P., Acresso Holding, LLC, a Delaware limited liability company, Parent and Merger Sub, pursuant to which Xxxxx Xxxxx Partners IX, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to providehas committed, subject to the terms and conditions set forth therein, to provide or cause to be provided equity financing of up to $20,200,000 in connection with the aggregate amount set forth therein Merger (being collectively referred to as the “Equity Financing”), ) and (ii) executed commitment letters and redacted forms of fee letters, dated which names the Company as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) a third-party beneficiary to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the such Equity Financing collectively referred to as Letter. The Equity Financing Letter, in the “Financing”). As of the date hereofform so delivered, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof andis, as of the date hereof, the Equity Funding Letters in full force and the Debt Commitment Letters (oreffect and is a legal, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, valid and binding and enforceable obligations obligation of Parent and Merger Sub, Sub and to the Knowledge knowledge of Parent, the other parties party thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Equity Funding Letters Financing Letter other than to the extent that any term or condition requires any action by, or otherwise relates to, the Debt Commitment Letters; provided that Parent is not making Company or any representation regarding of its Subsidiaries. Assuming the effect accuracy of the inaccuracy of the Company’s representations and warranties in Article 3. As contained herein, as of the date of this Agreementhereof, Parent does not and Merger Sub have any no reason to believe that they will be unable to satisfy on a timely basis any term or condition of the conditions closing to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth by them contained in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates Financing Letter. Upon receipt of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence Equity Financing Letter, Parent and Merger will have sufficient funds to consummate the Merger. Parent’s obligation to consummate the transactions contemplated hereby is not contingent on Parent’s ability to complete any public offering or private placement of Section 5.5(c). Neither Parent, Merger Sub nor equity or debt securities or to obtain any member other type of financing prior to consummating the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Merger.
Appears in 1 contract
Samples: Merger Agreement (Intraware Inc)
Financing. (a) Assuming the accuracy of the representations and warranties set forth in Section 4.05, the aggregate proceeds contemplated by the Commitment Letters will be sufficient to enable Parent and Merger Subsidiary to consummate the Merger upon the terms contemplated by this Agreement, including to pay the Merger Consideration for all of the shares of Company Stock on a fully-diluted basis, to make all payments in respect of the Company Stock Options, Company Restricted Shares, Company Performance Shares, Company Restricted Stock Unit Awards, Company Performance Stock Unit Awards, Company Share Units and Deferred Stock Units, to pay all related fees and expenses of Parent, Merger Subsidiary and their respective Representatives, and to make all other payments required by this Agreement and the Financing.
(b) Parent has delivered to the Company true, correct true and complete copiescopies of (i) the executed equity commitment letter, dated as of the date of this Agreementhereof, of (i) executed commitment letters from Investor (the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which Investor has committed to invest the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) fully executed commitment letter (the “Debt Commitment Letter”) from Jefferies Finance LLC, KeyBank National Association and KeyBanc Capital Markets Inc. (the “Lenders”) confirming their respective commitments to provide Parent with debt financing in connection with the transactions contemplated hereby (the “Debt Financing”).
(c) Except for fee letters with respect to fees and related arrangements with respect to the Debt Financing, of which Parent has delivered true, correct and complete copies to the Company prior to the date of this Agreement (in a redacted forms form removing only the fee information, but which fee information does not relate to the amounts or conditionality of, or contain any conditions precedent to, the funding of fee lettersthe Financing), dated there are no side letters or other agreements, contracts or arrangements related to the funding of the full amount of the Debt Financing, other than as of expressly set forth in the Debt Commitment Letter and delivered to the Company prior to the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. .
(d) Each of the Commitment Letters is in full force and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” effect and is a valid and binding obligation of Parent and, together with to the Equity Funding Lettersknowledge of Parent, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)other parties thereto. As None of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has have been amended or modified, no such amendment or modification is contemplatedmodified in any respect, and the respective commitments contained in such letters therein have not been withdrawn withdrawn, rescinded or rescinded otherwise modified in any respect. No event has occurred which would constitute a breach or default (or an event which with notice or lapse of time or both would constitute a default), or the failure of any condition, on the part of Parent or Merger Sub its Affiliates under the Commitment Letters or, to the knowledge of Parent on the part of the Lenders or the Investor. There are no conditions precedent to the funding of the full amount of the Financing other than the conditions precedent set forth in the Commitment Letters, and Parent has no reason to believe that it may not be able to satisfy any term or condition of closing of the Financing that is required to be satisfied as a condition of the Financing, or that the Financing may not be made available to Parent on the Closing Date. Parent (or an Affiliate thereof) has fully paid any and all commitment fees or other fees required by the Commitment Letters to be paid.
(e) Neither Parent nor Merger Subsidiary is aware of any direct or indirect limitation or other restriction on the ability of the Lenders in connection with the Equity Funding Letters and the Debt Commitment Letters Financing to provide financing for other potential purchasers of the Company.
(f) Parent acknowledges and agrees that are payable on or prior notwithstanding anything to the date hereof andcontrary in this Agreement, as the consummation of the date hereof, Financing shall not be a condition to the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations obligation of Parent and Merger Sub, Subsidiary to consummate the Merger and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds transactions contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinhereby.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Samples: Merger Agreement (Zep Inc.)
Financing. (a) Parent The Buyer has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (i) a true and complete copy of the executed commitment letters letter attached hereto as Schedule 3.4(i), among the Buyer, Banc of America Securities LLC, GE Capital Markets, Inc., UBS Securities LLC, UBS Loan Finance LLC, CIBC World Markets Corp., CIBC Inc., Bank of America, N.A., Banc of America Bridge LLC, General Electric Capital Corporation, as the same may be amended pursuant to Section 5.7 (the “Debt Financing Commitment Letter”), pursuant to which the lenders party thereto have agreed, subject to the terms, conditions and other provisions set forth therein, to provide or cause to be provided the debt amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses (the “Debt Financing”) and (ii) a true and complete copy of the executed equity financing commitment letter attached hereto as Schedule 3.4(ii) between Lightyear Fund II, L.P. and the Buyer (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity ProviderFinancing Commitment Letter”, and collectively together with the “Equity Provider GroupDebt Financing Commitment Letter, the ”) Financing Commitment Letters”), pursuant to providewhich Lightyear Fund II, L.P. has committed, subject to the terms and conditions set forth therein, equity financing in to invest the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). As None of the date hereof, none of the Equity Funding Letters or Debt Financing Commitment Letters has been amended or modifiedmodified prior to the date of this Agreement, no such amendment or modification is contemplatedcontemplated or will be undertaken except as permitted pursuant to Section 5.7 and, and as of the date of the Agreement, the respective commitments contained in such letters the Financing Commitment Letters have not been withdrawn or rescinded in any material respect. Parent or The Buyer and Merger Sub has have fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Financing Commitment Letters that are payable on or prior to the date hereof and, as of the date hereofof this Agreement, the Equity Funding Letters and the Debt Financing Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the in full force and effect and are valid, binding and enforceable obligations of Parent and Merger SubBuyer and, and to the Knowledge knowledge of ParentBuyer, each other party thereto so long as they remain in effect. There are no conditions precedent or other contingencies related to the other parties thereto. Assuming the Financing is funded and assuming the accuracy funding of any or all of the representations and warranties full amount of the Financing, other than as set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Financing Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, to the knowledge of the Buyer, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent the Buyer or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions Financing Commitment Letters. After giving effect to the Financing will not amounts expected to be satisfied or that funded under the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations Commitment Letters, and warranties set forth in Article 3, or the failure of assuming compliance by the Company to perform with its obligations hereunder. The Financing Letters contain all of , the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Buyer and Merger Sub nor will have at the Effective Time, together with the Company’s cash on hand, funds sufficient to pay the Merger Consideration and all costs, fees and expenses for which the Buyer and Merger Sub (including, without limitation, pursuant to Section 5.14) are responsible and any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably amounts required to be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including paid in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member consummation of the Equity Provider Group has caused or induced any Person to take any action that, if taken transactions contemplated by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Agreement.
Appears in 1 contract
Samples: Merger Agreement (Neff Rental LLC)
Financing. (a) Parent has delivered to the Company truea complete and correct copy of a fully executed commitment letter from the Financing Sources (including all exhibits, correct schedules, and complete copiesannexes to such letters as and to the extent delivered to the Company on or prior to the date of this Agreement, the “ Debt Commitment Letter ”), pursuant to which the Financing Sources have committed, upon the terms and subject to the conditions set forth therein, to provide the debt financing described therein in connection with the transactions contemplated hereby. The Debt Commitment Letter and any other debt commitment letter (including any replacement of the Debt Commitment Letter in connection with any Alternative Financing) executed in accordance with Section 7.06 , as replaced, amended, supplemented, modified or waived in accordance with Section 7.06 , including all exhibits, schedules, and annexes to such letters, are hereinafter referred to together as the “ Debt Commitment Letters ”. The financing contemplated pursuant to the Debt Commitment Letters is hereinafter referred to as the “ Debt Financing ”.
(b) As of the date of this Agreement, the Debt Commitment Letters are in full force and effect and are legal, valid and binding obligations of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”Parent, and collectively to the “Equity Provider Group”) knowledge of Parent, the other parties thereto, and enforceable in accordance with their respective terms against Parent, and to providethe knowledge of Parent, each of the other parties thereto, subject to the terms Bankruptcy and Equity Exceptions. All commitment fees required to be paid under the Debt Commitment Letters have been paid in full or will be duly paid in full as and when due, and Parent and Merger Sub have otherwise satisfied all of the other items and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred required to as the “Equity Financing”)be satisfied by them, and (ii) executed commitment letters within their control, pursuant to the terms of the Debt Commitment Letters on or prior to the date of this Agreement. None of the Debt Commitment Letters have been amended, modified or terminated on or prior to the date of this Agreement, and redacted forms of fee lettersno Debt Commitment Letter will be amended, dated modified or terminated by Parent or Merger Sub except as consistent with Section 7.06 . As of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the Company’s representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default by Parent or breach on the part Merger Sub under any Debt Commitment Letter. None of Parent or Merger Sub under is, as of the Equity Funding date of this Agreement, aware of any fact, occurrence or condition that makes any of the representations or warranties of Parent or Merger Sub set forth in any Debt Commitment Letter inaccurate (assuming the accuracy of the Company’s representations and warranties set forth in this Agreement) in any material respect, that would cause the commitments provided in the Debt Commitment Letter to be terminated or ineffective or any of the conditions contained therein not to be met. The consummation of the Debt Financing is subject to no conditions precedent other than those expressly set forth in the copies of the Debt Commitment Letters delivered to the Company, and there are no contingencies that would permit the Financing Sources to reduce the total amount of the Debt Financing other than those expressly set forth in the copies of the Debt Commitment Letters delivered to the Company. Except for fee letters relating to fees with respect to the Debt Financing (redacted copies of which, removing only fee amounts, market “flex” provisions and certain other terms (none of which would adversely affect the amounts, availability, timing or conditionality of the Debt Financing), have been provided to the Company on or prior to the date of this Agreement) and any engagement letters or fee discount letters related to the permanent financing referred to in the Debt Commitment Letters; provided that , there are no side letters or other agreements, contracts or arrangements to which Parent is not making or Merger Sub or any representation regarding of their respective Affiliates are a party related to the effect funding of the inaccuracy Debt Financing, other than as expressly set forth in the Debt Commitment Letters delivered to the Company on or prior to the date of the representations and warranties in Article 3this Agreement. As of the date of this Agreement, assuming no breach by the Company of its representations and warranties under this Agreement (and cooperation and assistance by the Company as required by the terms of this Agreement) and no breach or default by the Company of its obligations under this Agreement (in either case such that the conditions set forth in Section 9.01 or Section 9.02 would fail to be satisfied), and based upon facts and events known by Parent does not as of the date of this Agreement, none of Parent or Merger Sub have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Parent or Merger Sub as contemplated in the Debt Commitment Letters on or prior to the Closing Date. Subject to the terms and conditions of the Debt Commitment Letters, the aggregate proceeds of the Debt Financing, together with cash or cash equivalents held by Parent and the other sources of funds referenced in the copies of the Debt Commitment Letters delivered to the Company on or prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy this Agreement, as of the representations and warranties set forth Effective Time, will be sufficient to enable Parent to pay in Article 3, or the failure of the Company cash all amounts required to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party paid by it in connection with a transaction relating to the Company or its Subsidiaries (including cash in connection with the making of any Takeover Proposal))transactions contemplated hereby, in the case of clauses (i) and (ii), in connection with including the Merger Consideration and all payments, fees and expenses payable by it related to or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member arising out of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member consummation of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in transactions contemplated by this Section 4.5(b)Agreement.
Appears in 1 contract
Samples: Merger Agreement
Financing. (a) Parent has delivered to the Company true, complete and correct fully executed copy of the Debt Commitment Letter. Parent has also delivered to the Company true, complete and complete copiescorrect copies of any fee letter associated with the Debt Commitment Letter (the “Fee Letters”), subject, in the case of each such Fee Letter, to redaction solely of pricing, other economic terms, fee amounts, “market flex” provisions or other commercially sensitive terms set forth therein that are customarily redacted in transactions of this type, none of which redactions covers terms that could (A) reduce the amount of the Debt Financing below the amount required to satisfy the Financing Uses (after taking into account all other available sources of funds) or (B) impose any new condition precedent to the receipt of the Debt Financing or otherwise adversely amend, modify or expand the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter, in each case, in a manner that would reasonably be expected to materially impede, prevent or materially delay the Closing (the foregoing clauses (A) or (B), collectively, a “Debt Financing Adverse Impact”).
(b) As of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively Debt Commitment Letter in the “Equity Provider Group”) to provide, subject form delivered to the terms and conditions thereinCompany has not been amended, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”)supplemented or modified, and (ii) no such amendment, supplement or modification is contemplated by Parent or, to the Knowledge of Parent, by the other parties thereto (other than to add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed commitment letters and redacted forms of fee letters, dated the Debt Commitment Letter as of the date of this AgreementAgreement or to give effect to any “market flex” provisions in the Fee Letters), from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”iii) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Commitment Letter have not been withdrawn withdrawn, terminated, reduced or rescinded in any respect. material respect and, to the Knowledge of the Parent, no such withdrawal, termination, reduction or rescission is contemplated and (iv) there are no side letters or Contracts to which Parent is a party or other written arrangements of any kind, in each case, related to the funding of the Debt Financing that would have a Debt Financing Adverse Impact, other than as expressly set forth in the Debt Commitment Letter and (subject to Section 4.6(a) above) Fee Letters and delivered to the Company on or prior to the date hereof.
(c) Parent and Merger Sub has Sub, as applicable, have fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Letter that are due and payable on or prior to the date hereof and, as pursuant to the terms of the Debt Commitment Letter.
(d) As of the date hereofof this Agreement, the Equity Funding Letters and the Debt Commitment Letters (orLetter is in full force and effect and is the legal, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations obligation of Parent and Merger SubParent, and and, to the Knowledge of Parent, each of the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth , except, in Article 3 and performance each case, as such enforceability may be limited by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Bankruptcy and Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesException. As of the date of this Agreement, there are no conditions precedent to the funding of the Debt Financing, other than as expressly set forth in the Debt Commitment Letter or (subject to clause (a) above) the Fee Letters. As of the date of this Agreement, Parent has no Knowledge that any event has occurred which, with or without notice, lapse of time or both, would (i) constitute a default or breach on the part of Parent or Merger Sub or any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided Letter that Parent is not making any representation regarding would reasonably be expected to materially impede, prevent or materially delay the effect of Closing or (ii) reasonably be expected to constitute a failure to satisfy a condition precedent to the inaccuracy of the representations and warranties in Article 3. Debt Financing.
(e) As of the date of this Agreement, assuming the satisfaction or waiver of the conditions set forth in Article VI, Parent does not have any has no reason to believe that any of the conditions precedent to the Debt Financing contemplated by the Debt Commitment Letter will not be satisfied or that the Debt Financing will not be available to Parent or and/or Merger Sub on the date Closing Date in an amount (together with other available sources of funds) sufficient to satisfy the Closing; provided that Parent Financing Uses. Assuming the Debt Financing is not making any representation regarding funded in accordance with the inaccuracy of the representations Debt Commitment Letter (after netting out applicable fees, expenses, original issue discount and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent similar premiums and charges and after giving effect to the obligations maximum amount of “market flex,” including original issue discount flex provided under the parties thereunder to make Financing available to Debt Commitment Letter and any related Fee Letter), Parent on the terms therein.
(b) Neither Parent, and Merger Sub nor will have at the Closing funds sufficient to, when taken together with any member other available sources of the Equity Provider Group has financing (including cash on hand of Parent and Merger Sub), (i) retained any financial advisor on an exclusive basis pay the aggregate Merger Consideration and the other than Affiliates of any member of the Equity Provider Group or payments contemplated by this Agreement, (ii) entered into an agreement, arrangement or understanding with pay any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably and all fees and expenses required to be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party paid at Closing by Parent and Merger Sub in connection with a transaction relating to the Transactions and the Debt Financing, (iii) prepay or repay any outstanding Indebtedness of the Company or its Subsidiaries required to be prepaid or repaid at the Closing, and (including iv) make all of the other payments required to be made at Closing by Xxxxxx and Xxxxxx Sub hereunder in connection with the making of any Takeover Proposal)), in Transactions (the case of foregoing clauses (i) and through (iiiv), the “Financing Uses”).
(f) The obligations of Parent and Merger Sub to consummate the Transactions on the terms contemplated by this Agreement are not in connection with any way contingent upon or otherwise subject to Parent’s consummation of any financing arrangement, Parent or any of its Affiliates obtaining any financing (including the Merger Debt Financing or any Alternative Financing) or the other Transactionsavailability, exceptgrant, in the case provision or extension of clause (ii), for such actions taken after the No-Shop Period Start Date any financing to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub Parent or any member of its Affiliates (including the Equity Provider Group, would be a breach of, Debt Financing or would cause to be untrue, any of the representations in this Section 4.5(bAlternative Financing).
Appears in 1 contract
Samples: Merger Agreement (Logility Supply Chain Solutions, Inc)
Financing. (a) Parent has delivered to provided the Company true, with a correct and complete copiescopy of a fully executed debt commitment letter and term sheets, including all exhibits, schedules or amendments thereto as of the date of this Agreement (as it may be amended from time to time, the “Debt Commitment Letter”, together with the customary fee letter(s) referred to below), dated as of the date hereof, from its lenders party thereto pursuant to which such lenders have committed, subject to the terms and conditions set forth therein, to provide the financing commitments specified therein. Except for the Debt Commitment Letter, as of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) Parent is not party to provide, subject any Contract relating to the terms and conditions therein, equity funding of such financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of except for customary fee letters, dated as fee credit letters, and engagement letters, correct and complete copies of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject which have been delivered by Parent to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable Company on or prior to the date hereof andof this Agreement (other than with respect to redacted fees, as fee amounts, pricing terms, pricing caps, “market flex” provisions and other economic terms) that do not contain provisions that impose any additional conditions to the funding of the date hereof, the Equity Funding Letters and financing not otherwise set forth in the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(aLetter)) are the valid, binding and enforceable . The obligations of Parent and Merger Sub, and the lenders party to the Knowledge of Parent, Debt Commitment Letter to fund the commitments under the Debt Commitment Letter are not subject to any conditions other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties than as set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesLetter. As of the date of this Agreement, the Debt Commitment Letter is in full force and effect, and constitutes the legal, valid and binding obligation of Parent and each of the other parties thereto, and has not been terminated. Prior to the date hereof, the commitment contained in the Debt Commitment Letter has not been withdrawn or rescinded in any respect (and no party thereto has indicated an intent to so withdraw or rescind) or otherwise amended or modified in any respect. As of the date hereof, Parent is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter and no event has occurred which, with or without notice, lapse of time or both, would could reasonably be expected to constitute a default or breach on the part of by Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that failure by Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3to satisfy a condition precedent set forth therein. As of the date hereof, Parent has fully paid any and all commitment fees or other fees on the dates and to the extent required by the Debt Commitment Letter. The aggregate proceeds contemplated by the Debt Commitment Letter, together with available cash on hand of Parent, shall be sufficient to enable Parent to complete the Merger and to satisfy the obligations of Parent under this Agreement, Parent does not have including 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure outstanding indebtedness of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), required in connection with the Merger or as otherwise contemplated by this Agreement and the other Transactions, except, Debt Commitment Letter and any fees and expenses in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)connection thereof.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company Attached as Appendix A sets forth a true, correct and complete copies, as copy of the date executed Commitment Letter from the financing sources set forth therein (collectively, the “Lenders”; provided, that for purposes of this Agreement, of references to the Lenders also shall include, after the date hereof, to the extent alternative debt financing from alternative financial institutions is obtained in accordance with this Agreement, all such alternative financial institutions), together with the executed fee letters referenced in the Commitment Letter (iexcept that the fees, pricing and other economic terms set forth therein have been redacted) executed commitment letters (the “Equity Funding LettersFee Letter”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions set forth therein, equity financing in the aggregate amount Lenders have committed to lend the amounts set forth therein to the Buyer for the purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Equity Financing”); provided, and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date that for purposes of this Agreement, references to the Financing also shall include, after the date hereof, to the extent alternative debt financing from Xxxxxx Xxxxxxx Senior Fundingalternative financial institutions is obtained in accordance with this Agreement, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (any such alternative debt financing). There are no conditions precedent to the “Debt Commitment Letters” and, together funding of the full amount of the Financing in accordance with the Equity Funding Lettersterms of the Commitment Letter, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount other than as set forth therein and in the Fee Letter (being collectively referred to as including any “flex” provisions contained in the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”Fee Letter). As of the date hereof, none of the Equity Funding Letters Commitment Letter is in full force and effect and has not been withdrawn or Debt Commitment Letters has been terminated, or otherwise amended or modified, in any respect, and no such withdrawal, termination, amendment or modification is contemplatedcontemplated by the Company (other than amendments or modifications solely to add additional financing sources). The Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Buyer and, to Buyer’s knowledge, the other parties thereto (except in each case as may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, or moratorium Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies). Neither Buyer nor Merger Sub is party to any other agreements, side letters, or arrangements with the Financing Sources relating to the Commitment Letter (other than the Fee Letter, including any “flex” provisions contained in the Fee Letter) that could reasonably be expected to affect the availability of the Financing. Assuming the accuracy of the Company’s representations and warranties in this Agreement and the performance by the Company of its respective commitments contained obligations in such letters have not been withdrawn this Agreement, to Buyer’s Knowledge as of the date hereof, there are no facts or rescinded circumstances that would reasonably be expected to result in any respect. Parent of the conditions set forth in the Commitment Letter not being satisfied, or the Financing not being available to Buyer or Merger Sub Sub, on the date of the Closing. Buyer has fully paid any and all commitment fees or other fees required to be paid under the Commitment Letter. Assuming the accuracy of the Company’s representations and warranties in this Agreement and the performance by the Company and the Stockholders’ Representative of its respective obligations in this Agreement, when funded in accordance with their terms (in the case of the Financing, at the maximum amount of the term loan facility contemplated by the Commitment Letter and in the Fee Letter (including any “flex” provisions contained in the Fee Letter)) the net proceeds to be disbursed pursuant to the agreements contemplated by the Commitment Letter, together with cash-on-hand of Buyer, are sufficient to enable Buyer and Merger Sub to pay and satisfy all of their cash payment obligations as of the Closing Date under this Agreement and each of the Ancillary Agreements (including (A) the amounts necessary to satisfy all obligations under Article II due on the Closing Date and (B) any and all fees and expenses required to be paid by Buyer or Merger Sub on the Closing Date in connection with the Equity Funding Letters transactions contemplated hereby and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(aFinancing)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Buyer or Merger Sub under the Equity Funding Letters any condition or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect material term of the inaccuracy Commitment Letter, and to Buyer’s Knowledge, assuming the accuracy of the Company’s representations and warranties in Article 3. As this Agreement and the performance by the Company and the Stockholders’ Representative of the date of their respective obligations in this Agreement, Parent does not have any reason to believe that any of the conditions to the Financing Buyer will not be unable to satisfy on a timely basis any condition or material term to be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), by it contained in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Commitment Letter.
Appears in 1 contract
Financing. (a) Parent Buyer has delivered to the Company truecomplete and correct copies of fully executed and binding debt commitment letters, correct related term sheets and complete copiesall other related letter agreements or other agreements, which copies are attached hereto (except as of provided below with respect to the date of this Agreement, of (ifee letters) executed commitment letters as Exhibit B (the “Equity Funding LettersFinancing Commitments,” as each may be amended or replaced from time to time to the extent permitted by Section 6.10(a)) from Barclays Bank PLC, Barclays Capital Inc., JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities LLC (the “Lenders”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”pursuant to which, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions of which, the Lenders have committed to provide loans in the amounts described therein, equity financing in the aggregate amount set forth therein (being collectively referred proceeds of which shall be used to as consummate the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) transactions contemplated hereby to provide, subject be consummated by Buyer at or prior to the terms and conditions thereinClosing Date, debt financing but in an aggregate amount set forth therein no event later than the Termination Date (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”) (it being understood that it is not a condition to Closing under this Agreement for Buyer to obtain the Financing). Each of the Financing Commitments is a legal, valid and binding obligation of Buyer, and; to the knowledge of Buyer, the other parties thereto. As of the date hereof, each of the Financing Commitments is in full force and effect, and none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended withdrawn, rescinded or modifiedterminated or otherwise amended, no such amendment supplemented or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as As of the date hereof, (i) Buyer has no reason to believe that any of the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming conditions in the Financing is funded and assuming Commitments will not be satisfied, or that the accuracy of Financing will not be made available on a timely basis in order to consummate the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds transactions contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required hereby to be paid in connection with consummated at the consummation of the Transactions and to pay all related fees and expenses. As of the date of this AgreementClosing, (ii) no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Buyer under any term or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect condition of the inaccuracy Financing Commitments and (iii) no Lender has notified Buyer of its intention to terminate any of the representations Financing Commitments or not to provide the Financing. The net proceeds from the Financing together with Buyer’s available cash resources will be sufficient to permit Buyer to consummate the purchase of the Shares at Closing pursuant to Section 2.3, including any related repayment or refinancing of any Indebtedness of the Company, Buyer or any of their Subsidiaries and warranties payment of all its fees and expenses required in Article 3connection with the consummation of the transactions contemplated hereby to be consummated at the Closing. As Buyer has paid in full any and all commitment or other fees required by the Financing Commitments that are due as of the date hereof, and will pay, after the date hereof, all such fees as they become due. Except for fee letters with respect to fees and related arrangements with respect to the Financing Commitments (the terms and conditions of this Agreement, Parent does which do not have any reason to believe that and will not adversely affect the availability of the Financing or modify any of the conditions set forth in the Financing Commitments), there are no side letters, understandings or other agreements or arrangements relating to the Financing will not be satisfied to which Buyer or that any of its Affiliates are a party. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties other than as expressly set forth in Article 3, this Agreement or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger Commitments or the other Transactions, except, in the case payment of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted fees payable pursuant to the second sentence of Section 5.5(cfee letters with respect to the Financing Commitments (collectively, the “Disclosed Conditions”). Neither ParentNo person has any right to impose, Merger Sub and neither Buyer nor any member of the Equity Provider Group Lender has caused or induced any Person obligation to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrueaccept, any condition precedent to such funding other than the Disclosed Conditions nor any reduction to the aggregate amount available under the Financing Commitments on the Closing Date (nor any term or condition which would have the effect of reducing the representations in this Section 4.5(b)aggregate amount available under the Financing Commitments on the Closing Date) except as set forth therein.
Appears in 1 contract
Financing. (a) Parent The Purchaser has delivered to the Company true, correct (i) a true and complete copiescopy of a fully executed commitment letter, dated as of the date hereof, among the Purchaser and the Financing Sources party thereto (including all exhibits, schedules, and annexes to such letters in effect as of the date hereof), pursuant to which the Financing Sources have committed, upon the terms and subject to the conditions set forth therein, to provide the Financing and (ii) a true and complete copy of the fully executed fee letter referenced therein (together, and subject to the immediately succeeding sentence, the "Debt Commitment Letter"); provided that fees, "market flex" and other economic terms which do not affect the amount, availability or conditionality of any portion of the Financing may be redacted. As used in this Agreement, the term "Debt Commitment Letter" shall include any other debt commitment letter (including any replacement of the Debt Commitment Letter and related fee letter in connection with any Alternative Financing) executed and delivered in accordance with Section 6.12, as replaced, amended, supplemented, modified or waived in accordance with Section 6.12, including all exhibits, schedules, and annexes to such letters.
(b) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and is a legal, valid and binding obligation of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”Purchaser, and collectively to the “Equity Provider Group”) knowledge of Purchaser, the other parties thereto, and enforceable in accordance with its terms against the Purchaser, and to providethe knowledge of the Purchaser, each of the other parties thereto, in each case, subject to the terms Enforceability Limitations, regardless of whether enforcement is sought in a proceeding at law or in equity. All commitment fees required to be paid under the Debt Commitment Letter have been paid in full by the Purchaser or will be duly paid in full by the Purchaser as and conditions thereinwhen due. The Debt Commitment Letter has not been amended, equity financing in the aggregate amount set forth therein (being collectively referred restated, modified or terminated, nor has compliance with any term thereof been waived, on or prior to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, Agreement and the respective commitments contained in such letters the Debt Commitment Letter have not been withdrawn withdrawn, rescinded or rescinded otherwise modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable respect on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesAgreement. 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 breach or breach default, in each case, on the part of Parent or Merger Sub the Purchaser or, to the knowledge of the Purchaser, any other party, under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding Letter and (ii) assuming the effect accuracy of the inaccuracy of Company's and the Seller's representations and warranties contained in Article 3. As of III and Article IV to the date of this Agreementlevel required to satisfy the conditions to Closing set forth in Section 7.2(a) and compliance by the Company with its covenants contained in Article VI, Parent does not have any reason to believe in each case, in all material respects, the Purchaser has no knowledge that any of the conditions to the Financing will not be satisfied on the Closing Date or that the Financing or any other funds necessary for the satisfaction of all of the Purchaser's obligations under this Agreement will not be available to Parent the Purchaser on the Closing Date. The consummation of the Financing is subject to no conditions precedent other than those expressly set forth in the copy of the Debt Commitment Letter delivered to the Company, and there are no contingencies that would permit the Financing Sources to reduce the total amount of the Financing other than those expressly set forth in the copy of the Debt Commitment Letter delivered to the Company on or Merger Sub on prior to the date hereof. Except for any engagement letters or related fee letters related to the permanent financing referred to in the Debt Commitment Letter, as of the date of this Agreement, there are no side letters or other agreements, Contracts or arrangements to which the Closing; provided that Parent Purchaser or any of its Affiliates is not making any representation regarding a party related to the inaccuracy funding of the representations and warranties set forth in Article 3, or Financing. Assuming the failure funding of the Company full amount of the Financing in accordance with and subject to perform its obligations hereunder. The Financing Letters contain all the satisfaction (or waiver) of the conditions precedent of the Debt Commitment Letter, the aggregate proceeds of the Financing, as of the Closing Date, will be sufficient to enable the Purchaser to pay in cash all amounts required to be paid by the Purchaser in cash on the Closing Date, including all payments, fees and expenses payable by the Purchaser related to or arising out of the consummation of the transactions contemplated by this Agreement that are required to be paid as of such date. For the avoidance of doubt, the obligations of the parties thereunder to make Financing available to Parent on Purchaser hereunder are not conditioned in any manner upon the terms thereinPurchaser obtaining any financing.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Intercontinental Exchange, Inc.)
Financing. (a) 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 (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including the related fee letters (other than a fee letter that (i) relates solely to a “best efforts” financing and not to the facilities committed pursuant to such commitment letter and (ii) does not impact the conditionality or availability of the Committed Debt Financing in any respect) which may be subject to Permitted Redactions, as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time after the date hereof in compliance with the express terms of Section 4.9, the “Debt Commitment Letter”), from JPMorgan Chase Bank, N.A. pursuant to which it has committed to provide the Parent or its affiliates with debt financing (including pursuant to any amendment, restatement, amendment and restatement, supplement or other modification of the Debt Commitment Letter in compliance with Section 4.9, the “Committed Debt Financing”), the availability of which is subject only to the conditions expressly set forth therein, in connection with the transactions contemplated by this Agreement in an aggregate principal amount no less than the Required Amount.
(b) As of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Letter has not been amended or modified, (ii) no such amendment or modification is contemplatedcontemplated other than to appoint additional arrangers pursuant to the express terms of the Debt Commitment Letter as in effect on the date hereof, and (iii) the respective commitments contained in such letters the Debt Commitment Letter have not been withdrawn withdrawn, terminated, reduced or rescinded in any respect. Except for any fee letter referred to above (a true, complete and accurate executed copy of which has been provided to the Company, with only Permitted Redactions), customary engagement letters and fee credit letters with respect to the Committed Debt Financing, fee letters that relate solely to any “best efforts” take-out financing (and not to the financing committed pursuant to the Debt Commitment Letter) and do not impact the conditionality or availability of the Committed Debt Financing in any respect and customary non-disclosure agreements (none of which (and none of the redacted terms in respect of which) (i) reduces the amount of Committed Debt Financing below the amount required to satisfy the Required Amount, (ii) imposes any new condition or otherwise adversely amends, modifies or expands any conditions precedent to the Committed Debt Financing or (iii) materially affects, delays or impedes the availability or enforceability of the Committed Debt Financing), there are no side letters or other contracts or arrangements to which the Parent or Merger Sub any of its affiliates is a party related to the funding of the Financing, other than as expressly contained in the Debt Commitment Letter delivered to the Company on or prior to the date of this Agreement. The Parent has fully paid paid, or caused to be paid, any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Letter that are payable on or prior to the date hereof andand will pay, or cause to be paid, in full any such amounts due at or prior to the Effective Time as and when payable in accordance with the Debt Commitment Letter.
(c) As of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (orLetter, if applicablein the form so delivered, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the is in full force and effect and is a legal, valid, binding and enforceable obligations obligation of Parent and Merger SubParent, and to the Knowledge knowledge of Parentthe Parent and the Purchaser, the other parties thereto. Assuming thereto (in each case subject only to any limitation on enforcement under Law relating to (A) bankruptcy, winding-up, insolvency, arrangement, reorganization or other Law of general application affecting the Financing is funded enforcement of creditors’ rights and assuming (B) the accuracy discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction).
(d) There are no conditions precedent or other contingencies related to the funding or investing, as applicable, of the representations and warranties full proceeds of the Committed Debt Financing pursuant to any agreement relating to the Committed Debt Financing to which the Purchaser or any of its affiliates is a party, other than as expressly set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesLetter. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default or breach on the part of Parent or Merger Sub any term under the Equity Funding Letters or the Debt Commitment Letters; provided that Letter by the Parent is not making or any representation regarding of its affiliates or, to the effect knowledge of the inaccuracy of the representations and warranties in Article 3Parent, any other party thereto. As of the date hereof, assuming the satisfaction of the conditions in Section 6.1 and Section 6.2 and subject to the Company’s compliance with this Agreement, neither Parent does not have nor the Purchaser has any reason to believe that any of the conditions to the Committed Debt Financing will not be satisfied on a timely basis or that the full amount of the Committed Debt Financing will not be available to Parent or Merger Sub on the date behalf of the Closing; provided Purchaser at the Effective Time, except where sufficient proceeds of other Covered Financings will be available at the Closing (on conditions that Parent is are no less favourable to the Purchaser taken as a whole, and that do not making in any representation regarding the inaccuracy of the representations and warranties event impose any new or additional conditions to funding that are more onerous or extensive in any respect, than those set forth in Article 3, or the failure of Debt Commitment Letter) to fund the Company Required Amount. Subject to perform its obligations hereunder. The Financing Letters contain all the satisfaction of the conditions precedent in Section 6.1 and Section 6.2 and subject to the obligations of Company’s compliance with this Agreement and assuming the parties thereunder Committed Debt Financing is funded in accordance with the Debt Commitment Letter, the net proceeds from the Committed Debt Financing will, in the aggregate, be sufficient to make Financing available enable the Purchaser to Parent on pay, or cause to be paid, the terms thereinRequired Amount.
(be) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms Purchaser affirms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with it is not a transaction relating condition to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub Closing or any member of its other obligations under this Agreement that Purchaser obtain the Equity Provider Group, would be a breach of, Committed Debt Financing or would cause any other financing for or related to be untrue, any of the representations in this Section 4.5(b)transactions contemplated hereby.
Appears in 1 contract
Samples: Arrangement Agreement (Semtech Corp)
Financing. (a) Parent Purchaser has delivered to the Company a true, correct and complete copies, as copy of the date of this Agreement, of (i) an executed commitment letters (the “Equity Funding Letters”) letter dated September 19, 2007 from Silver Lake Partners III, L.P. and TPG Partners VXxxxxxx Xxxxx Credit Partners, L.P. (eachas the same may be amended and replaced in accordance with Section 5.09, an “Equity Provider”collectively, and collectively the “Equity Provider Group”) Commitment Letter“), pursuant to providewhich the lender parties thereto have committed, subject to the terms and conditions thereinthereof, equity financing in to lend the aggregate amount amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letterssuch commitments, the “Financing Letters”) Commitments“ and financing, “Financing“). The aggregate proceeds contemplated by the Financing Commitments are sufficient to providepay the Estimated Cash Purchase Price, subject any amounts required to be paid by Purchaser under Section 1.04, to refinance Purchaser’s outstanding indebtedness to the terms and conditions therein, debt financing extent required to be (or contemplated by the Financing as being) refinanced in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together connection with the Equity transactions contemplated by this Agreement and to pay all fees and expenses related to or arising out of the transactions contemplated by this Agreement or the Financing. For avoidance of doubt, it shall not be a condition to Closing for Purchaser to obtain the Financing collectively referred to as the “Financing”). or any alternative financing.
(b) As of the date hereof, (i) none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and (ii) the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any The Commitment Letter, in the form so delivered, is in full force and all commitment fees or other fees in connection with the Equity Funding Letters effect and the Debt Commitment Letters that are payable on or prior is a legal, valid and binding obligation of Purchaser and, to the date hereof and, as knowledge of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of ParentPurchaser, the other parties theretothereto for so long as it remains in full force and effect. Assuming There are no conditions precedent or other contingencies related to the Financing is funded and assuming the accuracy funding of the representations and warranties full amount of the Financing, other than as set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds or contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesFinancing Commitments. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Purchaser under any term or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect condition of the inaccuracy Financing Commitments. To the knowledge of the representations and warranties in Article 3. As Purchaser, as of the date of this Agreement, Parent does not have any Purchaser has no reason to believe that any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub Purchaser on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, Closing Date. On or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent prior to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parentdate hereof, Merger Sub nor Purchaser has fully paid any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms and all commitment fees that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including have been incurred and are due and payable in connection with the making Financing Commitments, and Purchaser will pay when due all other commitment fees arising under the Commitment Letters as and when they become payable.
(c) Purchaser has received from Cerberus Partners, L.P. (the “Sponsor“) a Guarantee of any Takeover Proposal))even date herewith (the “Guarantee“) duly executed and delivered by Sponsor providing for the guarantee of the obligations of Purchaser, in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to and on the second sentence terms set forth therein for the benefit of Section 5.5(c)Seller and the Company. Neither ParentThe Guarantee is in full force and effect and is the valid, Merger Sub nor any member binding and enforceable obligation of the Equity Provider Group Sponsor, and no event has caused occurred, which, with or induced any Person to take any action thatwithout notice, if taken by Parentlapse of time or both, Merger Sub or any member would constitute a default on the part of the Equity Provider GroupSponsor under the Guarantee. Purchaser has delivered to Seller a true, would be a breach of, or would cause to be untrue, any correct and complete copy of the representations in this Section 4.5(b)Guarantee.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, complete and correct and complete copiescopies of the executed equity commitment letter, dated as of May 15, 2011, among the date of this AgreementParent and TPG Partners VI, of (i) executed commitment letters L.P (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity ProviderFinancing Commitments”, and collectively pursuant to which the “Equity Provider Group”) to provideinvestor party thereto have committed, subject to the terms and conditions set forth therein, equity financing to invest in Parent the aggregate amount cash amounts set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms . None of fee letters, dated as of the Financing Commitments has been amended or modified prior to the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. As of the date hereof there are no side letters or other agreements, Contracts or arrangements related to the funding or investing, as applicable, of the Equity Financing other than as expressly set forth in the Financing Commitments delivered to the Company prior to the date hereof. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Financing Commitments that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) Financing Commitments are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent and Merger Sub, and as the case may be, and, to the Knowledge knowledge of ParentParent and Merger Sub, each of the other parties thereto. Assuming There are no conditions precedent or other contingencies related to the Financing is funded and assuming the accuracy funding of the representations and warranties full amount of the Equity Financing, other than as expressly set forth in Article 3 and performance by the Company Financing Commitments. To the knowledge of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this AgreementParent, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub or any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Financing Commitments. As of the date of this Agreementhereof, Parent does not have any has no reason to believe that any of the conditions to the Equity Financing contemplated by the Financing Commitments will not be satisfied or that the Financing will not be available to satisfied. Parent or and Merger Sub on will have at and after the date of Closing funds sufficient to (i) pay the Closing; provided that Parent is not making Merger Consideration, (ii) pay any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company all fees and expenses required to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither be paid by Parent, Merger Sub nor any member of and the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), Surviving Corporation in connection with the Merger and the Equity Financing, (iii) pay for any refinancing of any outstanding indebtedness of the Company contemplated by this Agreement or the Financing Commitments and (iv) satisfy all of the other Transactions, except, in the case payment obligations of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of and the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Surviving Corporation contemplated hereunder.
Appears in 1 contract
Samples: Merger Agreement (Primedia Inc)
Financing. (a) Parent has delivered to the Company true, correct true and complete copies, as of the date of this Agreement, copies of (ia) an executed commitment letters letter (the “Equity Funding LettersCommitment Letter”) from Silver Lake Partners IIIthe Equity Parties, L.P. and TPG Partners V, L.P. (each, an “pursuant to which the Equity Provider”, and collectively the “Equity Provider Group”) Parties have committed to provide, subject to the terms and conditions therein, provide equity financing in the an aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), of $433,300,000 and (iib) an executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. letter (the “Debt Commitment Letters” andLetter”) from Xxxxxx Brothers Commercial Bank and Xxxxxxx Xxxxx Capital Corporation, pursuant to which Xxxxxx Brothers Commercial Bank and Xxxxxxx Xxxxx Capital Corporation have committed to provide debt financing (“Debt Financing”) in an aggregate amount of $1,300,000,000 (the Equity Commitment Letter together with the Equity Funding LettersDebt Commitment Letter, the “Financing LettersCommitments”) to provide). Each of the Financing Commitments, subject in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent, the Equity Parties and, to the terms knowledge of Parent and Sub, the lenders party to the Debt Commitment Letter. There are no conditions therein, debt financing or other contingencies related to the funding in an aggregate amount full of the financings contemplated by the Financing Commitments other than as set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, (i) none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended modified or modifiedamended, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)ii) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time time, or both, would constitute a default breach by Parent or breach on Sub under any term or condition of any of the part Financing Commitments and (iii) to the knowledge of Parent and Sub, the commitments contained in the Financing Commitments have not been withdrawn or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making rescinded in any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3material respect. As of the date of this Agreementhereof, Parent does and Sub (i) are not aware of any fact or occurrence that makes any of the assumptions in any of the Financing Commitments inaccurate, (ii) have any no reason to believe that they will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by them contained in any of the conditions Financing Commitments and (iii) have no reason to believe that the Financing required to consummate the transactions contemplated hereby will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing made available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member Closing Date. Parent acknowledges that its obligations under this Agreement are not conditioned upon or subject to its receipt of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of proceeds made available under the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub Financing Commitments or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)other financing.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company Company, a true, complete and correct and complete copies, as copy of the date of this Agreement, of (i) executed commitment letters letter (the “Equity Funding LettersCommitment Letter”, from the financial institution identified therein (the “Lender”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) lender party thereto has committed to provide, subject to lend the terms and conditions therein, equity financing in the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as including funding of the date Exchange Fund) and related fees and expenses and the refinancing of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. certain outstanding Indebtedness of the Company (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). Parent has or will have, and will cause MergerSub to have, together with the Financing prior to the Effective Time sufficient funds to pay the aggregate Company Common Stock Merger Consideration, the aggregate Equity Award Consideration and all fees and expenses required to be paid by Parent and MergerSub related to the Merger and the other transactions contemplated by this Agreement. There are no conditions precedent related to the funding of the Financing other than as described in the Commitment Letter. As of the date hereof, none there are no other agreements, side letters or arrangements related to the funding of the Equity Funding Letters or Debt Financing other than the Commitment Letters Letter. The Commitment Letter has been amended or modified, no such amendment or modification is contemplatedduly executed and delivered by, and is a valid and binding obligation of, Parent and MergerSub and, to the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. knowledge of Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with MergerSub, the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior Lender named therein, subject to the date hereof and, as Enforceability Exceptions. As of the date hereof, the Equity Funding Letters Commitment Letter is in full force and the Debt Commitment Letters (oreffect and has not been withdrawn, if applicable, rescinded or terminated in any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Subrespect, and to has not been amended or modified in any respect. As of the Knowledge of Parentdate hereof, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth of the Company in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this AgreementIV, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub MergerSub under the Equity Funding Letters Commitment Letter, or to the Debt knowledge of Parent or MergerSub, the Lender named therein. All commitment and other fees required to be paid under the Commitment Letters; provided that Parent is not making any representation regarding Letter on or prior to the effect date hereof have been fully paid and, as of the inaccuracy date hereof, assuming the accuracy of the representations and warranties of the Company in Article 3. As IV, to the knowledge of the date of this AgreementParent and MergerSub, Parent does not have any reason to believe there is no fact or occurrence existing that makes any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties statements (including assumptions) set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinCommitment Letter inaccurate.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Samples: Merger Agreement (Physicians Formula Holdings, Inc.)
Financing. (a) Parent Holdings has delivered to the Company true, correct true and complete copiesfully executed copies of (i) the commitment letter, dated as of April 28, 2008, between Holdings and Xxxxxxx Xxxxx Credit Partners L.P., including all exhibits, schedules and amendments to such letter in effect as of the date of this Agreement (the “Senior Debt Commitment Letter”), and the commitment letter, dated as of April 28, 2008, between Parent, JPMorgan Chase Bank, N.A. and X.X. Xxxxxx Securities Inc., including all exhibits, schedules and amendments to such letter in effect as of the date of this Agreement (together with the Senior Debt Commitment Letter, the “Debt Financing Commitment Letters”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Holdings and Parent) has 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 equity commitment letter, dated as of April 28, 2008, by and between Holdings and Parent, including all exhibits, schedules and amendments to such letter in effect as of the date of this Agreement (the “Parent Equity Commitment Letter”), pursuant to which and subject to the terms and conditions thereof Parent has committed to invest the amount set forth therein, and the commitment letter, dated as of April 25, 2008, by Berkshire Hathaway Inc., including all exhibits, schedules and amendments to such letter in effect as of the date of this Agreement (together with the Parent Equity Commitment Letter, the “Equity Financing Commitment Letters” and together with the Debt Financing Commitment Letters, the “Financing Commitments Letters”), pursuant to which and subject to the terms and conditions thereof Berkshire Hathaway Inc. has committed to invest the amounts set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). None of the Financing Commitment Letters has been amended, restated or otherwise modified prior to the date of this Agreement, and the respective commitments contained in the Financing Commitment Letters have not been withdrawn, modified or rescinded in any respect prior to the date of this Agreement. As of the date of this Agreement, each of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners IIIFinancing Commitment Letters is in full force and effect and constitutes the legal, L.P. valid and TPG Partners Vbinding obligations of each of Holdings and Parent, L.P. (eachas applicable, an “Equity Provider”and, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms knowledge of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of ParentHoldings, the other parties thereto. Assuming There are no conditions precedent (including pursuant to any “flex” provisions) related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing is funded Commitment Letters. Subject to the terms and conditions of the Financing Commitment Letters, assuming the accuracy of the Company’s representations and warranties set forth contained in Article 3 Section 3.3 and performance Section 3.17 and assuming compliance by the Company of with its obligations under Section 5.2covenants contained in Sections 5.1(b), (c), (d) and (h) herein, the net aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Equity Funding Letters and Debt Financing Commitment Letters will, together with Company cash, in the aggregate will be sufficient for Merger Sub Holdings and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses, including payment of all amounts under Article II of this Agreement. As of the date of this Agreement, (i) assuming the accuracy of the Company’s representations and warranties contained in Section 3.8(a) hereof, no event has occurred which, which would constitute a breach or default (or an event which with notice or without notice, lapse of time or both, both would constitute a default or breach default), in each case, on the part of Holdings or Parent or Merger Sub under the Equity Funding Financing Commitment Letters or or, to the Debt knowledge of Holdings and Merger Sub, any other party to the Financing Commitment Letters; provided that Parent is not making any representation regarding , and (ii) subject to the effect satisfaction of the inaccuracy of the representations conditions contained in Sections 7.1 and warranties in Article 3. As of the date of this Agreement7.2, Parent Holdings 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 Holdings on the Closing Date. Holdings and Parent have fully paid all commitment fees or Merger Sub on other fees required to be paid prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted this Agreement pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Financing Commitment Letters.
Appears in 1 contract
Samples: Merger Agreement (Wrigley Wm Jr Co)
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreementhereof, of the fully executed Equity Commitment Letter, Debt Commitment Letter, Preferred Equity Commitment Letter, Debt Financing Fee Letter and the Preferred Equity Financing Fee Letter; provided that the copies of the Debt Financing Fee Letter and the Preferred Equity Financing Fee Letter delivered to the Company may be redacted to omit fee amounts, pricing terms, original issue discount, successful syndication levels and other economic terms (iincluding any “flex” provisions applicable thereto) that do not adversely impact the amount (other than through the operation of additional original issue discount or upfront fees) or adversely affect the availability of the Debt Financing or Preferred Equity Financing or expand the conditions to obtaining the Debt Financing or the Preferred Equity Financing on the Third Closing Date. As of the date hereof, except as set forth in the Commitment Letters, there are no conditions precedent to the obligations of the parties thereto to fund the full amounts contemplated by the Financing. As of the date hereof, each Commitment Letter has been duly executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”delivered by, and collectively is a legal, valid and binding obligation of, Parent and, to the “Equity Provider Group”) to provideknowledge of Parent, each other party thereto, in each case, subject to the terms Creditors’ Rights and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as has not been withdrawn or terminated. As of the date hereof, each Commitment Letter is in full force and effect against Parent and, to the knowledge of this AgreementParent, from Xxxxxx Xxxxxxx Senior Fundingagainst each other party thereto and has not been withdrawn, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. terminated or modified. All commitments and JPMorgan Chase Bank, N.A. (other fees required to be paid under the “Debt Commitment Letters on or prior to the date hereof have been paid. Except as expressly set forth in the Commitment Letters” and, together there are no conditions precedent related to the funding of the full amount of the Financing. As of the date hereof, assuming the satisfaction or waiver of each of the conditions precedent set forth in Section 9.1 and Section 9.3, Parent is not aware of any fact, occurrence or condition that would reasonably be expected to cause the financing commitments in the Commitment Letters to terminate or be ineffective or any term or condition of closing required to be satisfied by it pursuant to any Commitment Letter to not be met. There are no side letters (it being agreed that the Debt Financing Fee Letter and the Preferred Equity Financing Fee Letter are not side letters for this purpose), understandings or other agreements or arrangements of any kind relating to any of the Commitment Letters or the Financing that could adversely affect the availability or amount of the Financing contemplated by the Commitment Letters in any respect. Assuming the satisfaction or waiver of each of the conditions precedent set forth in Section 9.1 and Section 9.3, the aggregate proceeds of the Financing, if and when funded, will be sufficient for Parent to consummate the Transactions by payment in cash of the aggregate Total Cash Consideration payable following the Third Effective Time and the aggregate amounts payable (other than with respect to the Equity Funding LettersAggregate First Merger Amount) pursuant to the terms hereof to holders of the Company Restricted Shares, Company RSU Awards, Company PSU Awards and the Ordinary Shares held subject to the JSOP (such amount, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “FinancingRequired Funding Amount”). As of the date hereof, none no event has occurred that would result in any breach of or a default (or an event that, with or without notice or lapse of time, or both, would be a breach or default) under any Commitment Letter. Assuming the satisfaction or waiver of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, conditions set forth in Section 9.1 and Section 9.3 on the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof andThird Closing Date, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, has no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions to full amount under the Financing will not be satisfied or that the Financing Commitment Letter will not be available to Parent or Parent Merger Sub on the date of the Closing; provided Third Closing Date. The Equity Commitment Letter provides, and will continue to provide, that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third is a third-party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date beneficiary thereof to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)set forth therein.
Appears in 1 contract
Samples: Merger Agreement (Enstar Group LTD)
Financing. (a) Parent Buyer has delivered to the Company true, correct Seller true and complete copies, as copies of the date of this Agreement, of (i) fully executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. letter and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersrelated term sheets, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. between Buyer and JPMorgan Chase Aozora Bank, N.A. Ltd. (the “Debt Commitment LettersFinancing Commitments” and, together with the Equity Funding Letters, the or “Financing LettersCommitments”) ), pursuant to providewhich the lenders party thereto have committed, subject to the terms and conditions thereinthereof, debt financing in an aggregate amount to lend the amounts set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the ” or “Financing”). As of Prior to the date hereofof this Agreement, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and Each of the Debt Commitment Letters that are payable on or prior to Financing Commitments, in the date hereof andform so delivered, is in full force and effect as of the date hereofof this Agreement and constitutes a legal, the Equity Funding Letters valid and the Debt Commitment Letters (orbinding obligation of Buyer and, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge knowledge of ParentBuyer, the other parties thereto, subject to the Bankruptcy and Equity Exception. Assuming The obligations to make the Financing is funded and assuming available to Buyer pursuant to the accuracy terms of the representations and warranties Financing Commitments are not subject to any conditions other than the conditions set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesFinancing Commitments. As of the date of this Agreement, (i) none of the Financing Commitments has been supplemented, modified or amended in any material respect, (ii) no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Buyer under any term or Merger Sub under condition of the Equity Funding Letters Financing Commitments and (iii) the commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded. Buyer (x) is not aware of any fact or occurrence that makes any of the assumptions, or the Debt Commitment Letters; provided that Parent is not making representations or warranties of Buyer, in any representation regarding the effect of the inaccuracy Financing Commitments inaccurate in any material respect, (y) has no reason to believe that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it or its Affiliates contained in the representations Financing Commitments and warranties in Article 3. As of the date of this Agreement, Parent does not have any (z) has no reason to believe that any portion of the Financing required to consummate the transactions contemplated hereby will not be made available to Buyer on the Closing Date. Buyer has fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid by it on or prior to the date of this Agreement and shall in the future pay any such fees as they become due. Subject to the terms and conditions of the Financing Commitments, the net proceeds of the Financing, if and when funded, together with other financial resources of Buyer including cash on hand, will in the aggregate provide Buyer with financing at Closing sufficient to satisfy all of Buyer’s obligations under this Agreement, including the consummation of the Purchase and Sale and the other transactions contemplated by this Agreement and the Other Transaction Documents upon the terms set forth herein and therein, including the payment of the Purchase Price and all related fees and expenses associated with the foregoing. Buyer acknowledges that its obligations under this Agreement are not conditioned upon or subject to its receipt of the proceeds made available under the Financing Commitments or any other Financing (such obligations being subject only to the satisfaction of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b3.01).
Appears in 1 contract
Financing. (ai) Parent has delivered to the Company a true, complete and correct and complete copiescopy of the fully executed commitment letter, dated as of the date of this AgreementOctober 2, of 2011, between Parent and Credit Suisse AG, Credit Suisse Securities (iUSA) executed commitment letters LLC, X.X. Xxxxxx Securities LLC, JPMorgan Chase Bank, N.A., Xxxxxxx Xxxxx Bank USA, UBS Loan Finance LLC and UBS Securities LLC (the “Equity Funding LettersDebt Financing Commitments”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto have committed, subject to the terms and conditions set forth therein, equity financing in to lend the aggregate amount amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement (being collectively referred including funding of the Exchange Fund) and related fees and expenses (such committed financing, together with, unless the context requires otherwise, any debt securities to as be issued in lieu thereof, the “Equity Debt Financing”). Parent has delivered to the Company a true, complete and (ii) correct copy of the respective fully executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreementhereof, from Xxxxxx Xxxxxxx Senior Fundingbetween Parent and each Guarantor (collectively, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersEquity Financing Commitments” and, together with the Equity Funding LettersDebt Financing Commitments, the “Financing LettersCommitments”) ), pursuant to providewhich the investor parties thereto have committed, subject to the terms and conditions set forth therein, debt financing to invest in an aggregate amount Parent the cash amounts set forth therein (being collectively referred to as the “Debt Equity Financing”” and, and together with the Equity Financing collectively referred to as Debt Financing, the “Financing”). As None of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters Financing Commitments has been amended or modifiedmodified prior to the date of this Agreement, and as of the date hereof no such amendment or modification is contemplated, contemplated and the respective commitments contained in such letters the Financing Commitments have not been withdrawn or rescinded in any respectrespect and, to the Knowledge of Parent, no withdrawal or rescission is contemplated. Except for fee letters relating to fees with respect to the Debt Financing (complete copies of which have been provided to the Company, with fee amounts, pricing caps and certain economic terms of the market flex (none of which would adversely affect the amount or availability of the Debt Financing) redacted) and engagement letters with respect to the Debt Financing, as of the date hereof there are no side letters or other agreements, Contracts or arrangements related to the funding or investing, as applicable, of the Financing other than (i) the limited liability company agreement of Parent and (ii) as expressly set forth in or expressly contemplated by the Financing Commitments delivered to the Company prior to the date hereof. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Financing Commitments that are payable on or prior to the date hereof hereof, and, as of the date hereof, the Equity Funding Letters Financing Commitments are in full force and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) effect and are the legal, valid, binding and enforceable obligations of Parent and Merger SubParent, and and, to the Knowledge of Parent, each of the other parties theretothereto subject to the Bankruptcy and Equity 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 or expressly contemplated by the Financing Commitments delivered to the Company prior to the date hereof. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.25.1, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As as of the date of this Agreementhereof, 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 party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy Financing Commitments. Assuming the accuracy of the representations and warranties set forth in Article 3. As Section 5.1(b), the performance in all material respects by the Company of its obligations under this Agreement and satisfaction of the conditions set forth in Sections 7.1, 7.2 and 7.3, as of the date of this Agreementhereof, Parent does not have any has no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments will not be satisfied or that satisfied. Assuming the Financing will not be available is funded in accordance with the Financing Commitment, and satisfaction of Parent’s and Merger Sub’s conditions to Parent or Merger Sub on Closing, the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties set forth in Article 3, or the failure of Section 5.1(b) and performance by the Company to perform in all material respects of its obligations hereunder. The Financing Letters contain under this Agreement, Parent and Merger Sub will have at and after the Closing funds sufficient to (i) pay the aggregate Per Share Merger Consideration, (ii) pay any and all of the conditions precedent fees and expenses required to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither be paid by Parent, Merger Sub nor any member of and the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), Surviving Corporation in connection with the Merger and the Financing, (iii) pay for any refinancing of any outstanding indebtedness of the Company contemplated by this Agreement or the Financing Commitments and (iv) satisfy all of the other Transactions, except, in the case payment obligations of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of and the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Surviving Corporation contemplated hereunder.
Appears in 1 contract
Samples: Merger Agreement (Pharmaceutical Product Development Inc)
Financing. (a) Parent has delivered to the Company truea complete and correct copy of a fully executed commitment letter from the Financing Sources (including all exhibits, correct schedules, and complete copiesannexes to such letters as and to the extent delivered to the Company on or prior to the date of this Agreement, the "Debt Commitment Letter"), pursuant to which the Financing Sources have committed, upon the terms and subject to the conditions set forth therein, to provide the debt financing described therein in connection with the transactions contemplated hereby. The Debt Commitment Letter and any other debt commitment letter (including any replacement of the Debt Commitment Letter in connection with any Alternative Financing) executed in accordance with Section 7.06, as replaced. amended, supplemented. modified or waived in accordance with Section 7.06. including all exhibits, schedules, and annexes to such letters, arc hereinafter referred to together as the '"Debt Commitment Letters". The financing contemplated pursuant to the Debt Commitment Letters is hereinafter referred to as the ""Debt Financing".
(b) As of the date of this Agreement, the Debt Commitment Letters are in full force and effect and are legal, valid and binding obligations of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”Parent, and collectively to the “Equity Provider Group”) knowledge of Parent, the other parties thereto, and enforceable in accordance with their respective terms against Parent, and to providethe knowledge of Parent, each of the other parties thereto. subject to the terms Bankruptcy and Equity Exceptions. All commitment fees required to be paid under the Debt Commitment Letters have been paid in full or will be duly paid in full as and when due, and Parent and Merger Sub have otherwise satisfied all of the other items and conditions thereinrequired to be satisfied by them. and within their control, equity financing in pursuant to the aggregate amount set forth therein (being collectively referred terms of the Debt Commitment Letters on or prior to as the “Equity Financing”)date of this Agreement. None of the Debt Commitment Letters have been amended, modified or terminated on or prior to the date of this Agreement, and (ii) executed commitment letters and redacted forms of fee lettersno Debt Commitment Letter will be amended, dated modified or terminated by Parent or Merger Sub except as consistent with Section 7 06. As of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the Company's representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, . would constitute a breach or default by Parent or breach on the part Merger Sub under any Debt Commitment Letter. None of Parent or Merger Sub under is. as of the Equity Funding date of this Agreement. aware of any fact. occurrence or condition that makes any of the representations or warranties of Parent or Merger Sub set forth in any Debt Commitment Letter inaccurate (assuming the accuracy of the Company's representations and warranties set forth in this Agreement) in any material respect. that would cause the commitments provided in the Debt Commitment Letter to be terminated or ineffective or any of the conditions contained therein not to be met. The consummation of the Debt Financing is subject to no conditions precedent other than those expressly set forth in the copies of the Debt Commitment Letters delivered to the Company, and there arc no contingencies that would permit the Financing Sources to reduce the total amount of the Debt Financing other than those expressly set forth in the copies of the Debt Commitment Letters delivered to the Company. Except for fee letters relating to fees with respect to the Debt Financing (redacted copies of which, removing only fee amounts. market '"flex" provisions and certain other terms (none of which would adversely affect the amounts, availability, timing or conditionality of the Debt Financing). have been provided to the Company on or prior to the date of this Agreement) and any engagement letters or fee discount letters related to the permanent financing referred to in the Debt Commitment Letters; provided that , there are no side letters or other agreements, contracts or arrangements to which Parent is not making or Merger Sub or any representation regarding of their respective Affiliates arc a party related to the effect funding of the inaccuracy Debt Financing, other than as expressly set forth in the Debt Commitment Letters delivered to the Company on or prior to the date of the representations and warranties in Article 3this Agreement. As of the date of this Agreement, assuming no breach by the Company of its representations and warranties under this Agreement (and cooperation and assistance by the Company as required by the terms of this Agreement) and no breach or default by the Company of its obligations under this Agreement (in either case such that the conditions set forth in Section 9.01 or Section 9.02 would fail to be satisfied), and based upon facts and events known by Parent does not as of the date of this Agreement, none of Parent or Merger Sub have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Parent or Merger Sub as contemplated in the Debt Commitment Letters on or prior to the Closing Date. Subject to the terms and conditions of the Debt Commitment Letters, the aggregate proceeds of the Debt Financing, together with cash or cash equivalents held by Parent and the other sources of funds referenced in the copies of the Debt Commitment Letters delivered to the Company on or prior to the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy this Agreement, as of the representations and warranties set forth Effective Time, will be sufficient to enable Parent to pay in Article 3, or the failure of the Company cash all amounts required to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party paid by it in connection with a transaction relating to the Company or its Subsidiaries (including cash in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with transactions contemplated hereby. including the Merger Consideration and all payments, fees and expenses payable by it related to or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member arising out of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member consummation of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in transactions contemplated by this Section 4.5(b)Agreement.
Appears in 1 contract
Samples: Merger Agreement
Financing. (a) Parent has delivered Prior to the Company true, correct and complete copies, as of the date execution of this Agreement, Buyer has delivered to Seller complete and correct copies of executed commitment letters from (i) executed Deutsche Bank AG New York Branch and Deutsche Bank Securities Inc. and (ii) Barclays Bank PLC (including all schedules, annexes, exhibits or other attachments to such commitment letters other than those documents solely relating to fee arrangements in connection with such letters (collectively, the “Equity Funding "Commitment Letters”) from Silver Lake Partners III")). The documents relating to such fee arrangements do not contain any conditions precedent relating to the provision of the financing referred to in the Commitment Letters except for the payment of the fees provided therein. Pursuant to the Commitment Letters, L.P. such lenders and TPG Partners V, L.P. (each, an “Equity Provider”, their affiliates have committed to provide and collectively arrange the “Equity Provider Group”) to provide, financing described therein subject to the terms and conditions set forth therein, equity the proceeds of which may be used to consummate the transactions contemplated by this Agreement (such financing in the aggregate amount set forth therein (being collectively referred to as the “Equity "Financing”"), and (ii) executed commitment letters and redacted forms of fee letters, dated . The Commitment Letters are in effect as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. Execution Date and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) Buyer has not agreed to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such any material amendment or modification is contemplated, and to any of the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on would adversely affect the ability of Buyer or prior its Affiliates to the date hereof and, obtain financing as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesthereby. As of the date of this Agreement, (i) Buyer has not received from or provided to any counterparty to the Commitment Letters written notification that the Commitment Letters are not in full force and effect or have been withdrawn or terminated or otherwise amended or modified in any respect, that Buyer has failed to perform, and such failure is continuing, its Obligations thereunder to date, or that any counterparty thereto has not performed its Obligations thereunder to date, (ii) to Buyer's Knowledge, no event has occurred whichand no circumstance or condition exists, that (with or without notice, notice or lapse of time time) has resulted in or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent result in a breach or violation of, or a default under, the Commitment Letters and (iii) each Commitment Letter is a legal, valid, binding and enforceable agreement of Buyer, and, to Buyer's Knowledge, the other parties thereto and is in full force and effect, except as enforcement may be limited by bankruptcy, insolvency or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating other similar Laws affecting the enforcement of creditors" rights generally and except that the availability of equitable remedies, including specific performance, is subject to the Company or discretion of the court before which any Proceeding therefor may be brought. Buyer and its Subsidiaries (including Affiliates are in connection with a position to satisfy all of their respective conditions to advances under the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date Commitment Letters to the extent permitted pursuant such conditions are within their control. Buyer acknowledges that obtaining the Financing (y) is not a condition to its Obligation to consummate the second sentence transactions contemplated by this Agreement and (z) is not to be treated as a provision of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)8.3.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Par Petroleum Corp/Co)
Financing. (a) Parent has received and accepted an executed commitment letter dated as of the date hereof and attached as Annex I (as may be amended, restated, supplemented or otherwise modified in accordance with the terms hereof, the “Debt Commitment Letter”) from the lenders party thereto (collectively, the “Lenders”) pursuant to which the Lenders have agreed, subject to the terms and conditions thereof, to provide the debt amounts set forth therein. The debt financing contemplated by the Debt Commitment Letter is collectively referred to in this Agreement as the “Debt Financing.”
(b) Parent has received and accepted the Equity Commitment Letter (together with the Debt Commitment Letter, the “Commitment Letters”) from certain persons (collectively, the “Equity Investors”) pursuant to which the Equity Investors have agreed, subject to the terms and conditions thereof, to invest in Parent the cash amounts set forth therein. The Equity Commitment Letter provides that the Company is a third-party beneficiary thereof. The cash equity committed pursuant to the Equity Commitment Letter is collectively referred to in this Agreement as the “Cash Equity.” The Cash Equity and the Debt Financing are collectively referred to as the “Financing.” Parent has delivered to the Company true, correct and complete copiescopies of the executed Commitment Letters and any fee letters related thereto (with respect to such related fee letters, redacted for provisions related to fees, the economic terms of any “securities demand” and “market flex” provisions; provided that none of the redacted provisions would reasonably be expected to adversely affect the conditionality, availability or amount of the Financing).
(c) Except as expressly set forth in the Commitment Letters, as of the date of this Agreementhereof, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject there are no conditions precedent to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as obligations of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. Lenders and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, Investors to provide the “Financing Letters”) to provide, subject to or any contingencies that would permit the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with Lenders or the Equity Investors to reduce the total amount of the Financing collectively referred to as the (other than by operation of any “Financing”market flex” provisions). As of the date hereof, none assuming the accuracy of the Equity Funding Letters or Debt representations and warranties set forth in Article III, the performance by the Company of its obligations under Article V and the satisfaction of the conditions set forth in Section 6.1 and Section 6.3, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all conditions to be satisfied by it in any of the Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof andClosing Date, as nor does Parent have Knowledge that any of the Lenders or Equity Investors will not perform its obligations thereunder.
(d) The Financing, when funded in accordance with the Commitment Letters, shall provide Parent with cash proceeds on the Closing Date in an amount sufficient for the payment of the Merger Consideration, the refinancing of any indebtedness of the Company and its Subsidiaries under the Existing Credit Agreement , and the payment of any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation in connection with the foregoing (such amount, the “Financing Amount”).
(e) As of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are in full force and effect and are the valid, valid and binding and enforceable obligations of Parent and Merger Suband, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded , except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar Laws affecting creditors’ rights generally and by general principles of equity and assuming the accuracy of the representations and warranties set forth in Article 3 and III, the performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub Article V and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation satisfaction of the Transactions conditions set forth in Section 6.1 and to pay all related fees and expenses. As of the date of this AgreementSection 6.3, no event has occurred whichthat, with or without notice, lapse of time time, or both, would reasonably be expected to constitute a default or breach or a failure to satisfy a condition precedent on the part of Parent or Merger Sub under the Equity Funding Letters or terms and conditions of the Debt Commitment Letters; provided that . Parent is not making has paid in full any representation regarding and all commitment fees or other fees required to be paid pursuant to the effect terms of the inaccuracy of the representations and warranties in Article 3. As of Commitment Letters on or before the date of this Agreement, Parent does not have and will pay in full any reason to believe that such amounts due on or before the Closing Date. None of the Commitment Letters has been modified, amended or altered as of the date hereof, none of the Commitment Letters will be amended, modified or altered at any time through the Closing, except as permitted by Section 5.11(a), as of the date hereof, and none of the respective commitments under any of the conditions to the Financing will not be satisfied Commitment Letters have been withdrawn or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making rescinded in any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinrespect.
(bf) Neither 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 of its Affiliates or any other financing be a condition to any of Parent, ’s or Merger Sub’s obligations hereunder.
(g) Parent and Merger Sub nor any member of acknowledge and agree that it is not a condition to the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group Closing that Parent and Merger Sub obtain financing for or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)transactions contemplated hereby.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of copies of:
(i) an executed commitment letters (the “Equity Funding Letters”) Letter from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “each Equity Provider Group”) to provideinvest, subject to the terms and conditions therein, equity financing cash in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and ,
(ii) an executed rollover commitment letter (the “Rollover Letter”) from the Rollover Investors (as defined in the Rollover Letter) (collectively, the “Rollover Investors”) to contribute to Parent, subject to the terms and conditions therein, the amount of Company Common Stock set forth therein (the “Rollover Investment”), and
(iii) an executed commitment letter (together with any fee letters and related thereto) (provided that such fee letters may be redacted forms of fee lettersin a form reasonably satisfactory to the Financing Sources), dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment LettersLetter” and, together with the Equity Funding Letters, the “Financing Letters”) from the financial institution or institutions identified therein (the “Debt Providers”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount the amounts set forth therein (being collectively referred to as collectively, the “Debt Financing”” and, and together with the Equity Financing Financing, collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters Letters, the Rollover Letter or Debt Commitment Letters Letter has been amended or modified, no such amendment or modification is contemplatedcontemplated by Parent, and the respective obligations and commitments contained in such letters have not been withdrawn or rescinded in any respect. The existence or exercise of the “flex” provisions contained in one or more fee letters with respect thereto shall not constitute an amendment or modification of the Debt Commitment Letter. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters Letter that are payable on or prior to the date hereof and, as of hereof. Assuming (i) the date hereof, Financing is funded in accordance with the Equity Funding Letters and the Debt Commitment Letters (orLetter, if as applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)(ii) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 III and (iii) the performance by the Company of its obligations under Section 5.2hereunder, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters Letter will, as of the date hereof, together with available Company cash, cash equivalents and marketable securities (based on the most recent balance sheet contained in the Filed Company SEC Documents), in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions Merger, including all amounts payable pursuant to Section 2.03, and to pay all related fees and expenses.
(b) As of the date hereof, the Financing Letters are in full force and effect and are the valid, binding and enforceable obligations of Parent, Merger Sub and, to the knowledge of Parent in the case of the Debt Commitment Letter, the other parties thereto (except as such enforceability may be (i) limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws of general application relating to or affecting creditors’ rights generally and (ii) subject to general equitable principles (whether considered in a proceeding in equity or at law)). As of the date of this Agreement, 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 constitute a default or breach on the part of Parent or Merger Sub or, to the knowledge of Parent, any other parties thereto, under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Letter. As of the date of this Agreement, Parent is not aware of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect, nor does not it 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 Parent or Merger Sub on or before the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties (i) set forth in Article 3, III or compliance by the failure Company with its obligations hereunder or (ii) of the Company to perform its Rollover Investors set forth in the Rollover Letter or compliance by the Rollover Investors of their obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein, and there are no other conditions or contingencies related to the funding of the full amount of the Financing. As of the date hereof, there are no side letters or other Contracts, arrangements or understandings to which Parent or any of its affiliates is a party related to the funding or investing, as applicable, of the full amount of the Financing (other than the Financing Letters and the Rollover Letter), except for any customary sponsor and engagement letters in respect of the Financing that do not impact the availability, conditionality or amount of the Financing.
(bc) Neither None of Parent, Merger Sub nor Sub, any member of the Equity Provider Group or any of their respective affiliates has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any Contract prohibiting any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such debt financing or financial advisory services to any third party person in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal))Company Subsidiaries; provided, in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by that Parent, Merger Sub or any member of their respective affiliates may require such parties to use different individuals and implement ethical walls and other similar procedures in connection with other transactions relating to the Equity Provider Group, would be a breach of, Company or would cause to be untrue, any of the representations in this Section 4.5(b)Company Subsidiaries.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company A true, complete and correct and complete copies, as copy of the date of this Agreementcommitment letter, of dated July 27, 2015 (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners IIIas may be amended or replaced, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, in each case subject to the terms of Section 5.16(a), the “Commitment Letter”) as in effect on the date hereof has been provided to the Company. A true and conditions complete copy of each fee letter related to the Commitment Letter as in effect on the date hereof has been provided to the Company, except for customary redactions solely in respect of the amounts, percentages and basis points of compensation and other similar economics set forth therein, equity financing in the aggregate amount pricing and other terms of the “flex” provisions and the “securities demand” provisions set forth therein (being collectively referred to as none of which would impact the “Equity Financing”)conditionality, and (ii) executed commitment letters and redacted forms of fee letters, dated as enforceability or availability of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Financing).
(b) Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with required by the Equity Funding Letters and the Debt Commitment Letters that are payable Letter to be paid on or prior to before the date hereof and, as hereof. As of the date hereof, the Equity Funding Letters Commitment Letter is a legal, valid and binding obligation of each of the Debt Commitment Letters (orParent Companies party thereto and, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the each other parties party thereto. Assuming the Financing is funded , and assuming the accuracy in full force and effect, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights generally and by general principles of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesequity. As of the date hereof, (i) the Commitment Letter has not been amended or modified in any respect and has not been withdrawn, terminated or rescinded (or the commitments therein otherwise reduced) in any respect and, to the Knowledge of this AgreementParent, no withdrawal, termination or rescission or reduction is contemplated, and (ii) no Parent Company is in default under the terms and conditions of the Commitment Letter and no event has occurred which, which (with or without notice, lapse of time or both, ) would reasonably be expected to constitute a default or breach thereunder on the part of a Parent Company party or, to the Knowledge of Parent, any other party thereto and no Parent Company has received any written notice of such default or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3event. As of the date hereof, no amendment or modification of the Commitment Letter is contemplated (other than joinder documentation or an amendment and restatement of the Commitment Letter, in each case relating to the appointment of additional agents, co-agents, arrangers, bookrunners, managers or other roles in respect of the Financing or modifications thereto to implement the flex provisions set forth in any fee letter related thereto, none of which would impact the conditionality, enforceability or availability of the aggregate amount of the Financing).
(c) Assuming the satisfaction of the conditions set forth in Section 6.1 and 6.2, the aggregate proceeds contemplated to be provided by the Commitment Letter, together with available cash of the Parent Companies, will be sufficient for Parent and the Merger Subs to make all required payments in connection with the Mergers and the other transactions contemplated hereby, including payment of the Per Share Consideration or Option Cancellation Payment, any indebtedness required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Mergers (including all indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection therewith) and all other amounts to be paid pursuant to this AgreementAgreement and associated fees, Parent does not costs and expenses of the Mergers and the other transactions contemplated hereby, including the Financing, on the Closing Date.
(d) Except for the Commitment Letter and fee letters referred to in the Commitment Letter (copies of which have been provided to the Company in accordance with the foregoing), as of the date hereof, (i) there are no side letters or other agreements relating to the funding or investing, as applicable, of the financing contemplated by the Commitment Letter other than any reason engagement letter and fee credit letters, and (ii) there are no conditions precedent or other contingencies (including pursuant to believe any “market flex” provisions in the related fee letters or otherwise) related to the funding of the full amount of the Financing or any provisions that could reduce the aggregate amount of the Financing set forth in the Commitment Letter or the aggregate proceeds contemplated by the Commitment Letter. Assuming the satisfaction of the conditions precedent in Section 6.1 and 6.2, as of the date hereof, to the Knowledge of Parent, there are no facts or circumstances that would reasonably be expected to result in any of the conditions to the Financing will not be being satisfied on a timely basis or that would cause the full amount of the Financing will to not be available to the Parent or Merger Sub Companies on the date of on which the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted Closing should occur pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)2.2.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as As of the date of this Agreement, of (i) the Buyer has received an executed debt commitment letters letter dated the date hereof, including all exhibits, schedules and annexes thereto and any associated fee letter (the “Equity Funding LettersDebt Commitment Letter”) from Silver Lake Partners IIIBarclays and Xxxxxx Xxxxxxx Senior Funding, L.P. and TPG Partners VInc. (collectively, L.P. (each“Lender”), an “Equity Provider”, and collectively the “Equity Provider Group”) pursuant to providewhich Lender has committed, subject to the terms and conditions set forth therein, equity to provide to the Buyer the amount of financing set forth in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein Letter (being collectively referred to as the “Debt Financing”), for the Financing Purposes. A true and together with complete copy of the Equity Financing collectively referred Debt Commitment Letter has been previously provided to as the “Financing”Company (it being understood that such Debt Commitment Letter has been redacted in a customary manner, to omit the fee amounts and the flex provisions provided therein and other information customarily redacted in such Debt Commitment Letter). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub The Buyer has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and required by the Debt Commitment Letters that are payable Letter to be paid on or prior to before the date hereof and, under the terms of the Debt Commitment Letter or any related fee letter and will pay all additional fees to be paid under the terms of the Debt Commitment Letter or any related fee letter as they become due. As of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (orLetter is a legal, if applicablevalid and binding obligation of the Buyer and, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the validknowledge of the Buyer, binding and enforceable obligations of Parent and Merger Subeach other party thereto, except as the same may be limited by the Enforceability Exceptions, and to the Knowledge of Parentin full force and effect, the other parties thereto. Assuming the Financing is funded has not been amended, modified, withdrawn, terminated or rescinded in any respect, and assuming the accuracy of the representations and warranties set forth in Article 3 and performance does not contain any material misrepresentation by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Buyer or Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, which (with or without notice, lapse of time or both, ) would reasonably be expected to constitute a default or breach thereunder on the part of Parent the Buyer or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3Sub. As of the date hereof, no amendment or modification to, or withdrawal, termination or rescission of, the Debt Commitment Letter is contemplated. The aggregate proceeds contemplated by the Debt Commitment Letter, together with available cash of the Buyer and Merger Sub, will be sufficient for Merger Sub and the Surviving Company to complete the transactions contemplated by this Agreement, Parent does not have and to satisfy all of the obligations of the Buyer and Merger Sub under this Agreement, including (x) paying the Purchase Price at and after Closing, (y) effecting the repayment or refinancing of all Closing Indebtedness as of the Closing Date and (z) paying all fees and expenses payable hereunder or under the Debt Commitment Letter (collectively, the “Financing Purposes”). As of the date hereof, neither the Buyer nor Merger Sub has incurred any obligation, commitment, restriction or liability of any kind, and neither of them is contemplating or aware of any obligation, commitment, restriction or liability of any kind, in either case which would reasonably be expected to adversely affect the availability of the Debt Financing. Except for the fee letter referred to in the Debt Commitment Letter, as of the date hereof, there are no side letters or other agreements, contracts, arrangements or understandings related to the funding or investing, as applicable of the Debt Financing other than as expressly set forth in the applicable Debt Commitment Letter, that could adversely affect the conditionality, enforceability or availability of the Debt Financing. Neither the fee letter between the Buyer and Lender referred to in the Debt Commitment Letter nor any other contract between Lender, on the one hand, and the Buyer or any of its Affiliates, on the other hand, contains any 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 or the aggregate proceeds contemplated by the Debt Commitment Letter or (y) that could otherwise adversely affect the conditionality, enforceability or availability of the Debt Commitment Letter with respect to all or any portion of the Debt Financing. As of the date hereof, neither the Buyer nor Merger Sub has any reason to believe that any of the conditions to the Debt Financing will would not reasonably be expected to be satisfied on a timely basis or that the Debt Financing will would not reasonably be expected to be available to Parent or the Buyer and Merger Sub on the date on which the Closing should occur pursuant to Section 2.04. Each of the Closing; provided Buyer and Merger Sub expressly acknowledges and agrees that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of , including its obligations to consummate the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parenttransactions contemplated hereby, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach ofare not subject to, or would cause to be untrueconditioned upon, any receipt of the representations in this Section 4.5(b)financing.
Appears in 1 contract
Samples: Merger Agreement (Virtus Investment Partners, Inc.)
Financing. (a) Parent The Purchaser has delivered to the Company Seller true, complete and correct and complete copiescopies of an executed Commitment Letter, dated as of the date hereof, from Credit Suisse AG, Credit Suisse Securities (USA) LLC, UBS Loan Finance LLC, UBS Securities LLC, Royal Bank of this Agreement, of (i) executed commitment letters Canada and RBC Capital Markets (the “Equity Funding LettersDebt Financing Commitment”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) to providelenders party thereto have committed, subject to the terms and conditions set forth therein, equity financing in to lend the aggregate amount amounts set forth therein for the purposes, among other things, of financing the transactions contemplated by this Agreement (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with ). The Debt Financing Commitment has not been amended or modified prior to the Equity Financing collectively referred to as date of this Agreement (provided that the existence or exercise of the “Financing”flex” provisions contained in the Fee Letter (as defined below) shall not constitute an amendment of or modification to the Debt Financing Commitment). As , and, as of the date hereof, none to the knowledge of the Equity Funding Letters or Debt Commitment Letters has been amended or modifiedPurchaser, no such amendment or modification is contemplated, and the respective commitments contained in such letters the Debt Financing Commitment have not been withdrawn withdrawn, reduced or rescinded in any respect. Parent Except for any fee letter relating to fees and expenses with respect to the Debt Financing (the “Fee Letter”), as of the date hereof, there are no side letters or Merger Sub other contracts or arrangements related to the funding or investing, as applicable, of the Debt Financing other than as expressly set forth in the Debt Financing Commitment delivered to the Seller pursuant to the first sentence of this Section 5.4. The Purchaser has fully paid or caused to be fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters or expenses that are payable required to be paid on or prior to the date hereof pursuant to the Debt Financing Commitment, and, as of the date hereof, the Equity Funding Letters and Debt Financing Commitment, as delivered to the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into Seller pursuant to the first sentence of this Section 5.5(a)) are 5.4, is in full force and effect and is the validlegal, valid and binding and enforceable obligations obligation of Parent and Merger Subthe Purchaser and, and to the Knowledge knowledge of Parentthe Purchaser, each of the other lender parties thereto, as the case may be, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). Assuming the Financing is funded and assuming the accuracy of the representations and warranties Other than as expressly set forth in Article 3 the Debt Financing Commitment or the Fee Letter or as set forth in any such documents amended after the date hereof and performance by not in violation of the Company provisions hereof, there are no conditions precedent related to the funding of its obligations the full net amount of the Debt Financing (including any “flex” provisions) under Section 5.2any agreement relating to the Debt Financing to which the Purchaser is a party that would, or would reasonably be expected to, (i) impair the net proceeds contemplated by validity of the Equity Funding Letters and Debt Commitment Letters willFinancing Commitment, together with Company cash, in (ii) reduce the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing amount of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment LettersFinancing or (iii) and any other amounts required to be paid in connection with materially delay or prevent the consummation of the Transactions and to pay all related fees and expensesClosing. As of the date of this Agreement, no No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub the Purchaser or, to the knowledge of the Purchaser, any other party under the Equity Funding Letters or Debt Financing Commitment. Assuming the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy accuracy of the representations and warranties set forth in Article 3III and Article IV and performance by the Seller and the Company of their respective obligations hereunder, or the failure upon receipt of the Company proceeds contemplated by the Debt Financing Commitment, the Purchaser will have access at the Closing to sufficient funds to (i) pay the Purchase Price, and (ii) pay all other amounts contemplated by this Agreement to be paid by it and to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b).
Appears in 1 contract
Samples: Equity Purchase Agreement (Nci Building Systems Inc)
Financing. (a) Parent Nexstar, on Buyer’s behalf, has delivered to the Company Seller true, correct and complete copies, as copies of the date of this Agreement, of (i) executed commitment letters from Buyer’s lenders (the “Equity Funding Commitment Letters”) from Silver Lake Partners III), L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) pursuant to providewhich such lenders have agreed, subject only to the terms and conditions set forth therein, equity financing in to provide the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing for the transactions contemplated by this Agreement (such financing, or any alternative financing arrangements that Buyer pursues in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”accordance with Section 5.17, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such (a) are in full force and effect without amendment or modification is contemplatedmodification, (b) are the valid and binding obligations of Buyer and, to Buyer’s Knowledge, each other party thereto, (c) include all material terms relating to the respective commitments contained in such letters Financing, (d) have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any , and (e) all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid thereunder have been paid or will be paid in connection with full when due. Except as set forth in the Commitment Letters, there are no other conditions to the consummation of the Transactions Financing and to pay all related fees and expenses. As of the date of this Agreement, Buyer has no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any reason to believe that any of the conditions condition to the Financing Commitment Letters will not be satisfied or waived prior to the Closing Date. Buyer acknowledges and agrees that the Financing will obligation of Buyer to consummate the transactions contemplated by this Agreement is not be available to Parent or Merger Sub on conditioned upon the date closing of the Closing; provided that Parent is not making any representation regarding the inaccuracy Financing or Buyer’s receipt of the representations proceeds of the Financing or Buyer’s ability to finance or pay the Purchase Price and warranties set forth in Article 3, or that any failure of Buyer to consummate the transactions contemplated by this Agreement as a result of the failure of all, or any portion of, the Company Financing to perform its obligations hereunder. The Financing Letters contain all be funded for any reason shall constitute a material breach by Buyer of the conditions precedent this Agreement giving rise to Seller’s right to terminate this Agreement under Section 10.1(c) hereof, subject to the obligations terms and conditions of Section 10.1(c), and entitle Seller to receive the parties thereunder Escrow Deposit Fund (including, if applicable, attorneys’ fees and costs) pursuant to make Financing available Sections 10.5 or 11.1, subject to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence conditions of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)10.5.
Appears in 1 contract
Samples: Asset Purchase Agreement (Nexstar Broadcasting Group Inc)
Financing. (a) Parent has delivered to the Company true, correct true and complete copies, as copies of the date of this Agreement, of (i) executed equity commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersletter, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior FundingHailiang Group Co., Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. Ltd.. (the “Debt Equity Commitment Letters” andLetter”), together with regarding the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount proposed equity investments set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the .
(b) The Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification Letter is contemplated, in full force and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, effect as of the date hereof, the Equity Funding Letters hereof and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the validlegal, valid and binding and enforceable obligations of Parent and Merger Suband, and to the Knowledge of Parent, of the other parties thereto, in accordance with the terms and conditions thereof, subject to the Bankruptcy and Equity Exception. Assuming (A) the Financing Equity Commitment Letter is funded and assuming in accordance with the accuracy Equity Commitment Letter, (B) the contributions contemplated by the Support Agreement are made in accordance with the terms of the representations Support Agreement, (C) the satisfaction of the conditions to the obligations of Parent and warranties Merger Sub to consummate the Merger as set forth in Article 3 Section 7.1 and performance by Section 7.2 or the Company waiver of its obligations under Section 5.2such conditions, the net proceeds contemplated by the Equity Funding Letters Parent and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub will have at and after the Surviving Corporation Closing funds sufficient to pay the aggregate Per Share Merger Consideration, Option the aggregate Per ADS Merger Consideration and RSU Consideration (all fees and any other repayment or refinancing of debt contemplated expenses payable by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid them in connection with the consummation of the Transactions Merger and the other transactions contemplated hereby. The obligations of the financing sources to pay all related fees and expensesfund the commitments under the Equity Commitment Letter is not subject to any contractual conditions other than as set forth in the Equity Commitment Letter. As of the date of this Agreement, (i) the Equity Commitment Letter has not been amended or modified, and the respective commitments contained in the Equity Commitment Letter have not been withdrawn or rescinded, (ii) the Equity Commitment Letter is in full force and effect, and (iii) no event has occurred which, that (with or without notice, lapse of time time, or both, ) would constitute a breach or default or breach on under the part of Equity Commitment Letter by Parent or Merger Sub under Sub. The Equity Commitment Letter provides that the Equity Funding Letters Company is a third party beneficiary thereof. There are no side letters or other oral or written Contracts related to the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect funding of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member full amount of the Equity Provider Group has (i) retained Financing to which Parent or any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be is a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)party.
Appears in 1 contract
Financing. (a) Parent Globe has delivered to the Company true, correct true and complete copiescopies of (i) those certain executed commitment letters dated as of the date of this Agreement by and between Globe and the financing sources party thereto (the “Commitment Letters” and, together with the Fee Letters (as defined below), “Debt Financing Commitments”) pursuant to which the lender parties thereto have agreed, subject to the terms and conditions thereof, to provide or cause to be provided the debt amounts set forth therein (such amounts, the “Debt Financing”) and (ii) the fee letters referred to in such commitment letters (with only fee amounts redacted, none of which would adversely affect the amount or availability of the Debt Financing) (the “Fee Letters”). As of the date of this Agreement, none of the Debt Financing Commitments has been amended or modified, and the respective commitments contained in the Debt Financing Commitments have not been withdrawn or rescinded and, to the Knowledge of Globe, no withdrawal or rescission thereof is contemplated as of the date of this Agreement. As of the date of this Agreement, the Debt Financing Commitments are in full force and effect and constitute the legal, valid and binding obligation of Globe and, to the Knowledge of Globe, the other parties thereto (except to the extent that enforceability may be limited by the Bankruptcy and Equity Exception). There are no conditions precedent related to the funding of the full amount of the Debt Financing other than as expressly set forth in the Debt Financing Commitments. Except for the Commitment Letters and the Fee Letters, as of the date of this Agreement, there are no actual or contemplated side letters or other Contracts to which Globe or Acquirer, or any of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners IIItheir Affiliates, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject is or would be a party that relate to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as or availability of the date full amount of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesconditions applicable thereto. As of the date of this Agreement, no event has occurred which, that (with or without notice, notice or lapse of time time, or both, ) would constitute a breach or default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or Debt Financing Commitments by Globe, Acquiror or, to the Knowledge of Globe, any other party to the Debt Commitment Letters; provided that Parent is not making any representation regarding Financing Commitments. Assuming the effect satisfaction of the inaccuracy of conditions to Globe’s and Acquiror’s obligations to consummate the representations transactions contemplated hereunder contained in Section 6.1 and warranties in Article 3. As Section 6.3, as of the date of this Agreement, Parent Globe has no reason to believe that it will be unable to satisfy on a timely basis any term or condition to be satisfied by it and contained in the Debt Financing Commitments and is not aware, as of the date of this Agreement, of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Debt Financing Commitments inaccurate in any material respect, nor does not it have any reason to believe believe, as of the date of this Agreement, that any of the conditions to the Debt Financing will not be satisfied on or prior to the Closing Date or that the Debt Financing will not be available to Parent Globe and Acquiror on or Merger Sub on before the date of the Closing; provided that Parent is not making . Globe has fully paid any representation regarding and all commitment fees or other fees required by the inaccuracy terms of the representations and warranties set forth in Article 3, Debt Financing Commitments or the failure Fee Letters to be paid on or before the date of this Agreement. Assuming the Company to perform its obligations hereunder. The Financing Letters contain all satisfaction of the conditions precedent to Globe’s and Acquiror’s obligations to consummate the obligations of transactions contemplated hereunder contained in Section 6.1 and Section 6.3, and assuming that the parties thereunder to make Debt Financing available to Parent on Commitments are funded in accordance with the terms therein.
thereof, Globe will have at the Effective Time funds sufficient for the payment of (a) the aggregate Scheme Price and (b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably and all fees and expenses required to be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including paid by Globe and Acquiror in connection with the making of any Takeover Proposal))transactions contemplated by this Agreement, in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted including pursuant to the second sentence of Section 5.5(cDebt Financing Commitments (collectively, the “Required Amount”). Neither ParentIn no event shall the receipt or availability of any funds or financing, Merger Sub nor any member of including under the Equity Provider Group has caused or induced any Person to take any action thatDebt Financing Commitments, if taken by ParentGlobe, Merger Sub Acquiror or any member of the Equity Provider Group, would Affiliate thereof be a breach of, or would cause condition to be untrue, any of the representations in this Section 4.5(b)Globe’s or Acquiror’s obligations hereunder.
Appears in 1 contract
Samples: Implementation Agreement (SunEdison Semiconductor LTD)
Financing. (a) Parent has delivered Prior to the Closing Date, upon Parent’s request, the Company trueshall use its reasonable efforts to, correct and complete copiesto cause its Subsidiaries to use reasonable efforts to, prior to or at, and conditioned upon, the occurrence of the Closing, deliver all notices and take all other actions required to facilitate the termination of commitments under the Credit Agreement, dated as of August 28, 2014, among PMI Holdings, Inc., as borrower, the guarantors party thereto, the lenders party thereto, and Xxxxx Fargo Bank, National Association, as administrative agent for the lenders party thereto (as successor to Antares Capital LP (as successor to General Electric Capital Corporation)) (as the same may be amended, modified, supplemented, restated or amended and restated from time to time, including by the First Amendment to Credit Agreement, dated as of October 31, 2016, and the Second Amendment to Credit Agreement, dated as of November 6, 2018, the “Subject Indebtedness”), the repayment in full of all obligations then outstanding thereunder and the release of all Liens in connection therewith on the Closing Date, and deliver to Parent prior to or at the Closing a customary payoff letter in respect of the Subject Indebtedness (the “Payoff Letter”), which Payoff Letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs or other similar obligations related to the Subject Indebtedness as of the date of this Agreement, of (i) executed commitment letters Closing Date (the “Equity Funding LettersPayoff Amount”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters state that all obligations (including guarantees) in respect thereof (other than those contingent indemnification obligations that customarily remain following termination of a credit agreement) and redacted forms of fee letters, dated as Liens in connection therewith on the assets of the date Company or any of this Agreementits Subsidiaries shall be, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together substantially concurrently with the Equity Funding Lettersreceipt of the Payoff Amount on the Closing Date, the “Financing Letters”) released or arrangements reasonably satisfactory to provideParent for such release shall have been made by such time; provided that, subject notwithstanding anything to the terms and conditions therein, debt financing contrary in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does and Merger Sub acknowledge and agree that the delivery of the Payoff Letter pursuant to this paragraph by the Company to Parent shall not have be a condition to the Closing, and the Offer and the Closing are not conditioned upon Parent receiving such Payoff Letter. Notwithstanding anything to the contrary herein, all such requested cooperation provided in accordance with this Section 5.11 shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries and in no event shall the Company or any reason of its Subsidiaries be required to believe that bear any cost or expense other than de minimis cost or expenses, pay any commitment or other fee, enter into any definitive agreement, incur any other Liability, make any other payment or agree to provide any indemnity in connection with any of the conditions foregoing prior to the Financing will not be satisfied Effective Time. In addition, nothing in this Section 5.11 shall require any action that would conflict with or violate the Company Organizational Documents or any Law or result in, prior to the Effective Time, the contravention of, or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could would reasonably be expected to prevent (result in, prior to the Effective Time, a violation or otherwise hinder) such provider from providing breach of, or seeking default under, any Contract to provide such financing to any third party in connection with a transaction relating to which the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be is a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)party.
Appears in 1 contract
Financing. (a) Parent On the date hereof, Buyer has delivered to the Company Seller a true, correct and complete copiescopy of the debt commitment letter (the “Debt Commitment Letter”) pursuant to which the lenders party thereto have, as subject to the terms thereof, committed to provide the amounts set forth therein to Buyer for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) (which may include up to $400,000,000 in bridge financing to be utilized in the event and to the extent the placement of high yield debt securities in a comparable amount (the “High-Yield Financing”) is not consummated). The Debt Commitment Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the Debt Financing available to Buyer on the terms set forth therein.
(b) As of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” andLetter is in full force and effect and has not been withdrawn, together with the Equity Funding Lettersrescinded or terminated, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing or otherwise amended or modified in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)any respect. As of the date hereof, none of and assuming due and valid execution by the Equity Funding Letters or Debt Commitment Letters has been amended or modifiedother parties thereto, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof andLetter represents a legal, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations obligation of Parent and Merger SubBuyer and, and to the Knowledge of Parentthe Buyer, each other party thereto, to provide the other parties thereto. Assuming debt financing contemplated thereby (except to the Financing is funded and assuming extent that enforceability may be limited by the accuracy applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity), subject only to the satisfaction or waiver of the representations and warranties set forth conditions therein in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection accordance with the consummation of the Transactions and to pay all related fees and expensesterms thereof. As of the date of this Agreement, no event has occurred whichthat, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Buyer under any term or Merger Sub under the Equity Funding Letters or condition of the Debt Commitment Letters; provided that Parent is not making any representation regarding Letter and, assuming the effect satisfaction of the inaccuracy conditions contained in Article IX, the Buyer has no reason to believe that Buyer will be unable to satisfy, on a timely basis, any term or condition of Closing to be satisfied by it contained in the Debt Commitment Letter, or that any portion of the representations debt financing contemplated thereby will be unavailable on the Closing Date. Any and warranties in Article 3. As of all commitment fees or other fees required by the Debt Commitment Letter to be paid on or before the date of this Agreement, Parent does not Agreement 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunderbeen fully paid. The aggregate proceeds from the Debt Financing Letters contain and/or any High-Yield Financing, together with cash on hand and other resources of Parent and Buyer, constitute all of the conditions precedent financing required by the Buyer to consummate the obligations of transactions under this Agreement and pay any related fees and expenses (the parties thereunder to make Financing available to Parent on foregoing, the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b“Required Amount”).
Appears in 1 contract
Financing. (a) Parent has delivered Newco shall promptly provide to the Company truecopies of all material amendments, correct and complete copies, as waivers or other modifications to the final execution copies of the Commitment Papers provided to the Company prior to the date of this Agreement, of (i) executed commitment letters hereof (the “Equity Funding LettersExecuted Commitment Papers”) from Silver Lake Partners III(any such amendment, L.P. modification or waiver not to be made without the prior written consent of the Company if the result of such amendment, modification or waiver would be to lower the aggregate principal amount of financing available under the Commitment Papers or to amend or modify any of the conditions to providing the financing contained in the Executed Commitment Papers, the date on which the commitment to provide such financing will expire or terminate or the terms giving rise to a right for a party to terminate the Executed Commitment Papers); and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject Newco shall promptly provide to the terms Company full, complete and conditions therein, equity correct copies of the commitment papers (or similar financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”papers), and (ii) any material amendments, waivers or modifications thereto, executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees delivered in connection with the Equity Funding Letters and any alternate financing facility obtained by Newco in lieu of the Debt Commitment Letters Financing Facility (which alternate financing facility shall have conditions to the closing and termination provisions that are payable the same as those set forth in the Executed Commitment Papers and shall contain a commitment by the financing sources providing such alternate facility to provide an aggregate principal amount of financing that is not less than the aggregate principal amount of financing provided under the Executed Commitment Papers). Newco shall also promptly inform the Company if, to the Knowledge of Newco, any material adverse developments shall arise or occur on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant Closing Date with respect to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation financing contemplated by the Executed Commitment Papers or any alternate facility obtained by Newco. Newco shall use its commercially reasonable efforts to perform and comply with all obligations and conditions required by the Executed Commitment Papers (or any commitment papers or similar financing papers executed and delivered in connection with any alternate financing facility obtained by Newco) to be performed or satisfied by Newco or any of its affiliates prior to, at and as of the Transactions Closing Date, it being understood and agreed that nothing contained herein shall (i) require Newco to pay all related fees and expenses. As agree to any amendment, waiver or modification of the date of this Agreement, no event has occurred which, with Executed Commitment Papers or without notice, lapse of to any material term that is not included in the Executed Commitment Papers and (ii) require Newco to close on any Interim Loans (as such term is defined in the Executed Commitment Papers) at any time or both, would constitute a default or breach on prior to the part of Parent or Merger Sub under second Business Day prior to the Equity Funding Letters or the Debt Commitment Letters; Outside Date (provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties other conditions in Article 3VI have been satisfied or waived by the parties entitled to the benefit thereto at such time). As of the date of this AgreementNewco agrees that it shall not be permitted to amend, Parent does not have any reason to believe that modify, or waive any of the conditions to the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date terms of the Closing; provided that Parent is not making any representation regarding Equity Commitment Letter without the inaccuracy prior written consent of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinCompany.
(b) Neither ParentThe Company shall provide, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to and shall cause the Company or its Subsidiaries (including and their respective Representatives to provide, all cooperation reasonably requested by Newco in connection with the making arrangement of any Takeover Proposal))the financing contemplated by the Commitment Papers, in the case of clauses including, (i) participation in due diligence sessions, management presentations, road show presentations and meetings with ratings agencies, (ii) assistance in the preparation of such financial statements (including those required by the SEC), offering or private placement memoranda, prospectuses and similar documents, and providing such financial and other information, necessary for the consummation of the financing contemplated by the Commitment Papers within the time periods required thereby and (ii)iii) executing and delivering such definitive financing documents and other requested certificates and documents, including solvency certificates, comfort letters and consents, as may be reasonably requested by Newco in connection with the Merger or foregoing. All expenses and fees incurred by the other TransactionsCompany, except, the Company Subsidiaries and their respective Representatives in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in connection with this Section 4.5(b)5.13(b) shall be promptly reimbursed by Newco.
Appears in 1 contract
Samples: Merger Agreement (Doane Pet Care Co)
Financing. (a) Parent has delivered Prior to the Company true, correct and complete copies, as of the date execution of this Agreement, Parent has furnished to the Company a true and complete copy of (i) the executed commitment letters (Equity Commitment Letter, from the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”Fund to Parent pursuant to which, and collectively subject to the “Equity Provider Group”) to provideterms and conditions of which, the Fund has committed to, subject to the terms and conditions thereinthereto, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with invest the Equity Financing collectively referred to as in Parent. The Equity Commitment Letter provides that the “Financing”). As of Company is a third party beneficiary thereof on the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties terms set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensestherein. As of the date of this Agreement, the Equity Commitment Letter is in full force and effect and has not been withdrawn or terminated, or otherwise amended, supplemented or modified in any respect. The Equity Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto, enforceable in accordance with its terms against each party thereto, in each case, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally and general equitable principles (whether considered in a proceeding in equity or at law). As of the date of this Agreement, there are no other agreements, side letters or arrangements to which Parent or Merger Sub is a party relating to the Equity Financing other than as expressly set forth in the Equity Commitment Letter. As of the date of this Agreement,
(a) the commitment contained in the Equity Commitment Letter has not been withdrawn or rescinded in any respect and (b), no event has occurred which, with or without notice, lapse of time or both, would constitute a failure of any condition of the Equity Commitment Letter or result in any portion of the Equity Financing being unavailable on the Closing Date or a default or breach on the part of Parent or Merger Sub under any term or condition of the Equity Funding Letters or Commitment Letter. The aggregate proceeds from the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect Equity Financing constitute all of the inaccuracy financing required for Parent and Merger Sub to consummate the transactions contemplated by this Agreement at Closing, including the payment of the representations Merger Consideration and warranties in Article 3. As the payment of the date of this Agreement, all associated costs and expenses to be paid by 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 Parent or and Merger Sub on the date of the at Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain Equity Commitment Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the Equity Financing available to Parent on the terms therein.
(b) Neither . Parent’s and Merger Sub’s obligations under this Agreement are not subject to any conditions regarding Parent’s, Merger Sub nor Sub’s or any member other person’s ability to obtain financing for the consummation of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement
Financing. (a) Parent has delivered to the Company true, correct and complete copies, as As of the date of this Agreement, of Parent has received and delivered to the Company (i) the executed commitment letters (the “Equity Funding Commitment Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreementhereof (including all exhibits, schedules and annexes thereto), from Xxxxxx Xxxxxxx Senior Fundingthe Equity Commitment Parties, Inc.pursuant to which the Equity Commitment Parties have committed to provide the Equity Financing, Citigroup Global Markets Inc.which Equity Commitment Letters provide that the Company is a third-party beneficiary thereto, JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “ii) an executed Debt Commitment Letters” andLetter, dated as of the date hereof (including all exhibits, schedules and annexes thereto) (together with the Equity Funding Commitment Letters, the “Financing Commitment Letters”) ), from the Debt Financing Sources party thereto, pursuant to providewhich the Debt Financing Sources have committed, subject solely to the terms and conditions expressly set forth therein, debt financing in an aggregate amount set forth therein to provide to the parent of Parent party to the Debt Commitment Letter (being collectively referred to as the “DCL Party”) the Debt Financing”, and Financing (together with the Equity Financing collectively referred to as Financing, the “FinancingFinancing ”). As A true and complete copy of each Commitment Letter (other than the date hereoffee letter referred to in the Debt Commitment Letter, which is addressed below) has been previously provided to the Company, and none of the Equity Funding Letters or Debt Commitment Letters so delivered to the Company has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded modified in any respectmanner prior to the date of this Agreement. Parent or Merger Sub the DCL Party, as applicable, has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt required by such Commitment Letters that are payable to be paid on or prior to before the date hereof and, and will pay all additional fees as they become due. As of the date hereof, the Equity Funding Letters and the Debt each Commitment Letters (orLetter is a legal, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligation of each party thereto (except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity), is in full force and effect, has not been amended, modified, withdrawn, terminated or rescinded in any respect, and does not contain any material misrepresentation by Parent or the DCL Party, as applicable. As of the date hereof, no amendment or modification (other than to add lenders, lead arrangers, bookrunners or syndication agents) to, or withdrawal, termination or rescission of, any Commitment Letter is contemplated by Xxxxxx, and the respective commitments contained in the Commitment Letters have not been reduced, terminated, withdrawn or rescinded in any respect. The aggregate proceeds contemplated by the Commitment Letters (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto and as adjusted for any cash of Parent or its Subsidiaries otherwise used to satisfy any of the obligations of Parent under this Agreement) will be sufficient for Parent to satisfy all of the obligations of Parent and Merger SubSub under this Agreement, including (x) paying the Merger Consideration at the Closing, (y) effecting the repayment, redemption or refinancing of all Indebtedness of the Company as of the Closing Date required to be repaid, redeemed or refinanced in connection with the Closing and (z) paying all fees and expenses of Parent and its Affiliates related to the Knowledge of Parenttransactions contemplated by this Agreement, including the Financing (collectively, the “Financing Purposes”). Except for customary engagement letters with respect to debt securities that may form part of the Debt Financing (none of which would adversely affect the amount or availability of the Debt Financing) and the fee letter referred to in the Debt Commitment Letter (a true and complete copy of which fee letter has been provided to the Company, with fee amounts, economic, financial, dollar and ratio terms (including related dates), “market flex” provisions (other parties thereto. Assuming than “structural” flex provisions) and securities demand provisions redacted in a customary manner (none of which redactions relate to the conditionality, availability or termination of the Debt Financing or which relate to any reduction of the aggregate principal amount of the Debt Financing below the amount required to satisfy the Financing is funded and assuming Purposes (after taking into account any available Equity Financing))), there are no side letters or other agreements or Contracts related to the accuracy funding or investing, as applicable, of the representations and warranties Financing other than as expressly set forth in Article 3 the applicable Commitment Letter and performance by delivered to the Company prior to the date of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters this Agreement. Parent and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub understand and acknowledge that under the Surviving Corporation terms of this Agreement, Xxxxxx’s and Merger Sub’s obligation to pay consummate the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt transactions contemplated by this Agreement is not contingent upon or otherwise subject to Parent’s consummation of any financing arrangements, Xxxxxx’s obtaining of any financing or the availability, grant, provision or extension of any financing to Parent. Except as expressly set forth in the Commitment Letters, there are no conditions precedent to the obligations of the Debt Financing Sources or the Equity Funding Letters Commitment Parties to provide the Financing or any contingencies that would permit the Debt Financing Sources or the Debt Equity Commitment Letters) and any other amounts Parties to reduce the aggregate principal amount of the Financing below the amount required to be paid in connection with satisfy the consummation Financing Purposes, including any condition or other contingency relating to the amount or availability of the Transactions and Financing pursuant to pay all related fees and expensesany “flex” provision. As of the date hereof, (A) Parent, the DCL Party and if applicable, Merger Sub, are not in breach of this Agreement, any of the terms or conditions set forth in the Commitment Letters and no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach or failure to satisfy a condition on the part of Parent or Merger Sub the DCL Party or any other party thereto under the Equity Funding Letters any term or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect condition of the inaccuracy of the representations Commitment Letters and warranties in Article 3. As of the date of this Agreement, (B) Parent does not have any has no reason to believe that any of the conditions to the Financing will would not be satisfied on a timely basis on or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent prior to the obligations of the parties thereunder to make Financing available to Parent on the terms thereinClosing Date.
(b) Neither ParentConcurrently with the execution of this Agreement, Merger Sub nor any member the Equity Commitment Parties have delivered to the Company the duly executed Limited Guarantees. The Limited Guarantees are in full force and effect, have not been amended, and are legal, valid, binding and enforceable obligations of the Equity Provider Group has Commitment Parties (iexcept to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar Laws affecting the enforcement of creditors’ rights generally or by general principles of equity).
(c) retained any financial advisor on an exclusive basis other than Affiliates No transfer of any member of the Equity Provider Group property is being made by Parent or (ii) entered into an agreementMerger Sub, arrangement and no obligation is being incurred by Parent or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party Merger Sub in connection with the transactions contemplated by this Agreement or the other Transaction Documents, with the intent to hinder, delay or defraud either present or future creditors of Parent or Merger Sub or any of their respective Subsidiaries. Assuming (1) the satisfaction or waiver of each of the conditions contained in Section 6.1 and Section 6.3, and (2) the Company and its Subsidiaries, taken as a transaction relating whole, are Solvent as of the date hereof and will be Solvent as of immediately prior to the Company or Effective Time, then after giving effect to the consummation of the transactions contemplated by this Agreement, including the payment of the aggregate Merger Consideration and the other amounts required to be paid pursuant to Article II and the funding of the Financing pursuant to the Commitment Letters, Parent and its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (iSurviving Corporation) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would will be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Solvent.
Appears in 1 contract
Financing. (a) Substantially concurrently with the execution and delivery of this Agreement, Parent has delivered to the Company truetrue and correct copies of a commitment letter, correct including all exhibits and complete copies, as of the date of this Agreement, of (i) executed commitment letters schedules thereto (the “Equity Funding LettersCommitment Letter”) from Silver Lake (and a corresponding (x) customarily redacted engagement letter and (y) customarily redacted fee letter, in each case relating to the Commitment Letter) pursuant to which Xxxxxxx Sachs Bank USA and Xxxxxxx Xxxxx Lending Partners III, L.P. and TPG Partners V, L.P. LLC have committed to provide Parent with financing in the amount set forth therein (each, an “Equity Provider”, and collectively the “Equity Provider GroupFinancing”) to providefor the purpose of funding the transactions contemplated by this Agreement, subject to the terms and conditions therein, equity financing set forth in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “Financing”)Letter. As of the date hereof, none the Commitment Letter is in full force and effect to the knowledge of Parent and is a legal, valid and binding obligation of Parent and to the knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Funding Letters Exception. As of the date of the Commitment Letter, Parent has not entered into any agreement, side letter or Debt other arrangement relating to the financing of the transactions contemplated by this Agreement that could adversely affect the availability of the Financing on the Closing Date, other than as described in the Commitment Letters has been amended Letter and any unredacted portion of the fee letter or modified, no such amendment or modification is contemplatedengagement letter related to the Commitment Letter provided to the Company on the date hereof, and there are no conditions precedent related to the respective commitments contained funding of the full amount of the Financing, other than as expressly set forth in such letters have not been withdrawn or rescinded in any respectthe Commitment Letter. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with required by the Equity Funding Letters and the Debt Commitment Letters that are payable Letter to be paid by it on or prior to the date hereof and, as of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties theretothis Agreement. Assuming the Financing is funded satisfaction of the conditions to Closing in this Agreement and assuming the accuracy of the representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.25.1, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Lettersi) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Parent the Parent, or Merger Sub to Parent’s knowledge, any other party thereto under the Equity Funding Letters or the Debt Commitment Letters; provided that Letter, and (ii) Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, Parent does not have any has no reason to believe that any of the conditions condition to the Financing set forth in the Commitment Letter will not be satisfied or the Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing made available to Parent on the terms therein.
(b) Neither Closing Date. Assuming the accuracy of the representations set forth in Section 5.1 and the performance by the Company and its Subsidiaries of their obligations under this Agreement, the net proceeds from the Financing, together with cash otherwise available to Parent, Merger Sub nor any member will be sufficient to pay the Cash Consideration and all other cash amounts (including amounts required to repay or prepay all indebtedness outstanding under the Company Credit Agreements (without giving effect to clause (E) of the Equity Provider Group has definition of such term) (i) retained any financial advisor on an exclusive basis other than Affiliates of any member the MLP Credit Agreement) and the Company Indentures (without giving effect to clause (D) of the Equity Provider Group or definition of such term) (iiother than the MLP Indenture) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably to be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including paid in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member consummation of the Equity Provider Group has caused or induced any Person transactions contemplated by this Agreement. Parent confirms that it is not a condition to take any action that, if taken by Parent, Merger Sub Closing or any member of its other obligations under this Agreement that Parent consummate the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Financing.
Appears in 1 contract
Samples: Merger Agreement (Tesoro Corp /New/)
Financing. 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 Letter is in full force and effect and is a legal, valid and binding obligation of the Buyer Parties and, to Parent’s or Buyer’s Knowledge, the other parties thereto, and the Debt Financing Commitment thereunder has not been withdrawn or terminated. Assuming the satisfaction of the conditions set forth in Section 6.01, (a) Parent each Buyer Party has delivered no reason to the Company true, correct and complete copiesbelieve, as of the date of this Agreement, that it will not be able to satisfy on a timely basis any term or condition of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) closing to provide, subject to the terms and conditions therein, equity financing be satisfied by it or its Affiliates set forth in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), Debt Commitment Letter and (iib) executed commitment letters and redacted forms of fee letterssuch Buyer Party has no reason to believe, dated as of the date of this Agreement, that any portion of the Debt Financing to be made available thereunder will otherwise not be available to the Buyer Parties on a timely basis to consummate the transactions contemplated hereby. The execution of this Agreement and the consummation of the transactions 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 Indenture, dated as of May 2, 2006, among Parent, Wxxxx Fargo Bank, National Association, and the other parties thereto, as amended from Xxxxxx Xxxxxxx Senior Fundingtime to time (the “Indenture”) or any other credit facility or financing arrangement of the Buyer Parties (other than, Inc.with respect to incurrence of the additional debt financing contemplated by the Debt Commitment Letter, Citigroup Global Markets Inc.the Credit Agreement, JPMorgan Securities dated as of May 2, 2006, among Parent (as successor by merger to Lone Star Merger Corp., Activant Group Inc. and (formerly known as Lone Star Holdings Corp.), Deutsche Bank Trust Company Americas, as Administrative Agent, the 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 “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, and together with the Equity Financing collectively referred to as the “FinancingCredit Agreement”). As of the date hereof, none of the Equity Funding Letters or Debt Commitment Letters has been amended or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters The Buyer Parties have not been withdrawn or rescinded in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and required by the Debt Financing Commitment Letters that are payable to be paid by it on or prior to the date hereof and, as of this Agreement. Assuming the satisfaction of the date hereof, the Equity Funding Letters conditions set forth in Section 6.01 and in the Debt Commitment Letters (orLetter, if applicablethe Debt Financing, any alternative debt commitment letters entered into 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. The obligations to make the Debt Financing available to the Buyer Parties pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy terms of the representations and warranties Debt Financing Commitment are not subject to any conditions other than the conditions set forth in Article 3 and performance by the Company of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, Letter. Nothing in this Section 4.09 or in Section 5.20 shall be construed to limit the aggregate be sufficient for Merger Sub and obligation of the Surviving Corporation Buyer Parties to pay consummate the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt transactions contemplated by this Agreement Agreement, the Parties agreeing and acknowledging that the Closing is expressly not conditioned upon either (x) the Buyer Parties obtaining, or the Equity Funding Letters or ability to obtain, the Debt Commitment LettersFinancing or any Alternative Financing or (y) and the effectiveness of any other amounts required amendment to be paid in connection with the consummation Credit Agreement necessary to permit the incurrence of the Transactions and to pay all related fees and expenses. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article 3. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the conditions precedent to the obligations of the parties thereunder to make Financing available to Parent on the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates of any member of the Equity Provider Group or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Alternative Financing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Activant Solutions Inc /De/)
Financing. (a) Parent has delivered to the Company Attached hereto as Exhibit I are true, correct and complete copies, as copies of the date of this Agreement, of (i) executed commitment letters (the “Equity Funding Letters”) from Silver Lake Partners III, L.P. and TPG Partners V, L.P. (each, an “Equity Provider”, and collectively the “Equity Provider Group”) to provide, subject to the terms and conditions therein, equity financing in the aggregate amount set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee lettersSubscription Agreements, dated as of the date of this Agreementhereof, from Xxxxxx Xxxxxxx Senior Fundingpursuant to which, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (on the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, terms and subject to the terms and conditions therein, debt financing the PIPE Investors have agreed to provide the PIPE Financing to PTAC in an aggregate amount set forth therein (being collectively referred to as connection with the “Debt Financing”transactions contemplated by this Agreement. Each Subscription Agreement is a legal, valid, and together with binding agreement of PTAC and, to the Equity Financing collectively referred to as knowledge of PTAC, the “Financing”)other parties thereto. As of the date hereof, none each commitment of the Equity Funding Letters or Debt Commitment Letters PIPE Financing is in full force and effect, and no commitment of PIPE Financing has been amended withdrawn, rescinded, or modified, no such amendment or modification is contemplated, and the respective commitments contained in such letters have not been withdrawn or rescinded in any respectterminated. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the date hereof and, as As of the date hereof, the Equity Funding Letters and the Debt Commitment Letters (or, if applicable, PTAC is not in breach of any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the valid, binding and enforceable obligations of Parent and Merger Sub, and to the Knowledge of Parent, the other parties thereto. Assuming the Financing is funded and assuming the accuracy of the representations and warranties set forth terms or conditions in Article 3 and performance by the Company Subscription Agreements nor has any PIPE Investor party thereto notified PTAC of its obligations under Section 5.2, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and own breach of any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expensesterms or conditions under any Subscription Agreement. As of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under the Equity Funding Letters or the Debt Commitment Letters; provided that Parent is not making any representation regarding the effect by PTAC of the inaccuracy of terms or conditions in the representations and warranties in Article 3Subscription Agreements. As of the date of this Agreement, 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 Parent or Merger Sub on the date of the Closing; provided that Parent is not making any representation regarding the inaccuracy of the representations and warranties set forth in Article 3, or the failure of the Company to perform its obligations hereunder. The Financing Letters contain all of the There are no conditions precedent or contingencies to the obligations of the parties thereunder under any Subscription Agreement to make fund the PIPE Financing available Amount, other than as set forth in the Subscription Agreements. There are no other agreements, side letters or arrangements between PTAC and any PIPE Investor relating to Parent on any Subscription Agreement which could affect the terms therein.
(b) Neither Parent, Merger Sub nor any member obligation of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis other than Affiliates PIPE Investors to contribute to PTAC the applicable portion of the PIPE Financing set forth in the Subscription Agreements, and, as of the date hereof, PTAC does not know of any member of the Equity Provider Group facts or (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms circumstances that could may reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing to any third party result in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations conditions set forth in this Section 4.5(b)any Subscription Agreement not being satisfied, or the PIPE Financing not being available to PTAC, at the Closing.
Appears in 1 contract
Financing. (a) Parent has delivered to the Company a true, correct and complete copiescopy of the fully executed debt commitment letter(s) and the fee letter(s), dated as of the date of this Agreement, of (i) executed commitment letters hereof (the “Equity Funding LettersDebt Financing Commitment”) from Silver Lake Partners III(in the case of the fee letter(s), L.P. redacted form removing commercially sensitive information therein, including the fee information and TPG Partners V“flex” provisions), L.P. (each, an “Equity Provider”, and collectively pursuant to which the “Equity Provider Group”) Debt Financing Sources have committed to provideParent and/or its Affiliates, subject to the terms and conditions set forth therein, equity to provide or cause to be provided the debt amounts set forth therein for the purpose, among others, of financing the transactions contemplated by this Agreement and related fees and expenses to be incurred by Parent and/or its Affiliates in connection therewith and for the aggregate amount other purposes set forth therein (being collectively referred to as the “Equity Financing”), and (ii) executed commitment letters and redacted forms of fee letters, dated as of the date of this Agreement, from Xxxxxx Xxxxxxx Senior Funding, Inc., Citigroup Global Markets Inc., JPMorgan Securities Inc. and JPMorgan Chase Bank, N.A. (the “Debt Commitment Letters” and, together with the Equity Funding Letters, the “Financing Letters”) to provide, subject to the terms and conditions therein, debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing”, which may also include certain actions to be taken under and together in connection with the Equity Financing collectively referred to as the “Financing”Existing Credit Agreement). As of the date hereof, none of the Equity Funding Letters Debt Financing Commitment is valid and in full force and effect, has not been amended, modified or Debt Commitment Letters has been amended or modifiedwaived, no such amendment amendment, modification or modification waiver is contemplatedpending or contemplated (except for amendments to add additional financing sources thereto in accordance with the Debt Financing Commitment), and the respective commitments contained in such letters have Debt Financing Commitment has not been withdrawn withdrawn, terminated or rescinded in any respect. Parent has fully paid or Merger Sub has caused to be fully paid any and all commitment fees or other fees required to be paid in connection with the Equity Funding Letters and the Debt Financing Commitment Letters that are payable on or prior to the date hereof andhereof. The Debt Financing Commitment, as of in the date hereofform so delivered, the Equity Funding Letters and the Debt Commitment Letters (oris a valid, if applicable, any alternative debt commitment letters entered into pursuant to Section 5.5(a)) are the validlegal, binding and enforceable obligations obligation of Parent and Merger Suband, and to the Knowledge knowledge of Parent, the other parties thereto, except as enforceability may be limited by the Enforceability Exceptions. Assuming the Financing is funded truth and assuming the accuracy correctness in all material respects of the Company’s representations and warranties set forth in Article 3 and performance by the Company of its obligations under Section 5.2made hereunder, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letters will, together with Company cash, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration, Option Consideration and RSU Consideration (and any other repayment or refinancing of debt contemplated by this Agreement or the Equity Funding Letters or the Debt Commitment Letters) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses. As as of the date of this Agreementhereof, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub to the Knowledge of Parent, any other parties thereto, under the Equity Funding Letters Debt Financing Commitment, or a failure of any condition to the Debt Commitment Letters; provided that Parent is not making Financing or otherwise result in any representation regarding the effect portion of the inaccuracy Debt Financing being unavailable on the Closing Date. Assuming the truth and correctness of the Company’s representations and warranties in Article 3. As hereunder, as of the date of this Agreementhereof, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not fail to timely be satisfied or that the full amount of the Debt Financing will not be available to Parent or Merger Sub unavailable on the Closing Date (taking into account the Marketing Period). As of the date of the Closing; provided that this Agreement, Parent is not making aware of any representation regarding the inaccuracy fact, event or other occurrence that makes any of the representations and or warranties set forth of Parent in Article 3, the Debt Financing Commitment misleading or the failure of the Company to perform its obligations hereunderinaccurate in any material respect. The Debt Financing Letters contain all of the Commitment is not subject to any conditions precedent to the obligations of the parties thereunder (including with respect to the Debt Financing Commitment, pursuant to any “flex” provisions in the related fee letter) to make the full amount of the Debt Financing available to Parent on at the terms therein.
(b) Neither Parent, Merger Sub nor any member of the Equity Provider Group has (i) retained any financial advisor on an exclusive basis Closing other than Affiliates as set forth therein (including the payment of any member of the Equity Provider Group or customary fees). The Debt Financing (ii) entered into an agreement, arrangement or understanding with any bank or investment bank or other potential provider of debt or equity financing on an exclusive basis (or otherwise on terms that could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing both before and after giving effect to any third party “flex” provisions contained in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Takeover Proposal)Debt Financing Commitment), in will be sufficient for Parent to pay the case of clauses Aggregate Merger Consideration (i) less the Aggregate Parent Stock Value and (iiless the Aggregate Exercise Price), in connection with the Merger or Payoff Amount and the other Transactions, except, in the case of clause (ii), for such actions taken after the No-Shop Period Start Date to the extent permitted pursuant to the second sentence of Section 5.5(c). Neither Parent, Merger Sub nor any member of the Equity Provider Group has caused or induced any Person to take any action that, if taken by Parent, Merger Sub or any member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 4.5(b)Selling Expenses.
Appears in 1 contract
Samples: Merger Agreement (AdaptHealth Corp.)