Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder. (b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”) (c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters. (d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters. (e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Valley Telephone Co., LLC), Merger Agreement (Knology Inc)
Financing. (a) The aggregate amount of funds contemplated to be Parent has provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct true and complete copy copies of (i) the fully executed commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereofJuly 7, among Parent2009, Merger Sub between Parent and the other parties thereto each of ▇▇▇▇▇ Fargo Foothill LLC and Capital Source Bank (collectively, the “Equity Debt Financing SourcesCommitments”), pursuant to which each of ▇▇▇▇▇ Fargo Foothill LLC and Capital Source Bank has agreed to lend the Equity Financing Sources have committed, amounts set forth therein on the terms and subject to the terms thereof, to invest the cash amounts conditions set forth therein (the “Equity Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement, and (ii) (A) the fully executed equity commitment letter, dated as of the date hereof, from Credit Suisse Securities between Parent and STG III, L.P. and STG III-A, L.P. (USAthe “STG Equity Commitment”) LLC, ▇▇▇▇▇▇ and (B) the fully executed equity and debt commitment letter between Parent and ▇▇▇▇▇▇▇ Senior FundingAssociates, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇L.P. and ▇▇▇▇▇▇▇ International, L.P. (the “▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter▇ Equity Commitment” and, together with the STG Equity Commitment, the “Equity Financing LetterCommitments” and together with the Debt Financing Commitments, the “Financing LettersCommitments”), pursuant to which each of ▇▇▇ ▇▇▇, ▇.▇., ▇▇▇ ▇▇▇-▇, L.P., ▇▇▇▇▇▇▇ Associates, L.P. and ▇▇▇▇▇▇▇ International, L.P. has committed to invest the lenders party thereto have committed, amount set forth therein on the terms and subject to the terms thereof, to lend the amounts conditions set forth therein (the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, none of the Financing Letters have not Commitments has been amended or modified modified, and none of the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of and constitute the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge each of Parent, each of Merger Subsidiary and the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other moratorium, liquidation, conservatorship, receivership or similar laws relating to, or affecting or relating to generally the enforcement of, creditors’ rights generallyand remedies or by other equitable principles of general application (regardless of whether such enforceability is considered in a proceeding in equity or at law)). The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, other than as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements expressly set forth in the Financing Letters inaccurate in any material respect. As of the date hereofCommitments, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing contemplated in the Financing Letters 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 and Merger Sub at or prior to on the Closing DateDate (assuming in each case compliance by the Company with its covenants hereunder and the continuing accuracy of the Company’s representations and warranties hereunder). Parent 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 Subject to the terms and conditions of the Financing Letters. Other than Commitments, the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related to the funding or investing, as applicable, aggregate proceeds of the full Financings together with the Company Cash Deposit is an amount of sufficient to consummate the Financing other than as expressly set forth in Merger upon the Financing Letters.
(d) As of the date hereof, none terms contemplated by this Agreement and pay all related fees and expenses of Parent, Merger Sub or any of Subsidiary and their respective Affiliates is a party Representatives pursuant to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (STG Ugp, LLC), Merger Agreement (MSC Software Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant Merger Subsidiary has received and furnished copies to the Financing Letters Company of (i) a commitment letter to provide financing to the Company or a Subsidiary of the Company (including the Summary of Terms and Conditions annexed thereto, the "Commitment Letter") with The Chase Manhattan Bank (the "Bank") dated as defined below)of July 31, 2000, and (ii) the Exchange and Voting Agreement. The funds which Bank has agreed, subject to the terms and conditions of the Commitment Letter, to provide will be sufficient, when taken together with other funds available to Merger Subsidiary and assuming compliance by the cash on hand Company Shareholder, IS and FS with the Exchange and Voting Agreement, to enable it to provide to the Exchange Agent the aggregate Merger Consideration and other amounts owing as a result of Parent the Transactions, to refinance substantially all of the existing debt of the Company and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness extent contemplated by the Financing Letters; (ii) Transactions as contemplated by the Commitment Letter, and to pay any and all related fees and expenses required to be paid by Parent(collectively, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder"Required Amount").
(b) Parent and Merger Sub have delivered to As of the Company a true, correct and complete copy of date hereof (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have has not been amended or modified withdrawn and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are is in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 Subsidiary has no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersCommitment Letter will not be satisfied.
(dc) Merger Subsidiary has received and furnished a copy to the Company of the equity commitment letters (the "Equity Commitment Letters") addressed to Merger Subsidiary from Sponsor and each of the other equity investors in Merger Subsidiary (the "Equity Investors"), each dated as of July 31, 2000 pursuant to which the Equity Investors have committed to make available to Merger Subsidiary certain funds, subject to the terms and conditions contained therein, for the purpose of consummating the Transactions. As of the date hereof, none of Parent, (i) no Equity Commitment Letter has been withdrawn and each Equity Commitment Letter is in full force and effect and (ii) Merger Sub or Subsidiary has no reason to believe that any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as conditions set forth in the Financing Lettersany Equity Commitment Letter will not be satisfied.
(ed) As Immediately after the consummation of the date hereofTransactions, neither Parent nor Merger Sub has the Surviving Corporation (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or will not be insolvent, (ii) entered into an exclusivitywill not be left with unreasonably small capital, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person iii) will not have debts beyond its ability to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)pay such debts as they mature.
Appears in 2 contracts
Sources: Recapitalization Agreement (Mascotech Inc), Recapitalization Agreement (Mascotech Inc)
Financing. (a) The aggregate amount SpinCo has delivered to RMT Parent a true, complete and fully executed copy of funds contemplated to be provided pursuant to the Financing Letters (as defined below)a commitment letter, together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to including (i) pay the aggregate Per Share Price all exhibits, schedules, attachments and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required amendments to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed such commitment letter (the “Equity Financing Letter”), dated in effect as of the date hereof, among Parent, Merger Sub of this Agreement and the other parties thereto (collectivelyii) any associated fee letters (together, the “Equity Financing SourcesSpinCo Commitment Letter”) from the lead arrangers, lenders and other financing sources party thereto (together with all additional lead arrangers, lenders and other financing sources added to the SpinCo Commitment Letter or any Alternative SpinCo Commitment Letter, the “SpinCo Lenders”), pursuant to which which, among other things, the Equity Financing Sources SpinCo Lenders have committedcommitted to SpinCo to provide, subject or cause to the terms thereofbe provided, to invest SpinCo debt financing in the cash amounts aggregate amount set forth therein (the “Equity Financing”) and (ii) bank financing contemplated by the executed commitment letterSpinCo Commitment Letter, dated being referred to as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “SpinCo Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, (x) the Financing Letters have SpinCo Commitment Letter has not been amended amended, restated, waived or modified and none of (y) the respective obligations and commitments contained in the Financing Letters SpinCo Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. The Financing LettersExcept for the SpinCo Commitment Letter (together with all ancillary documents referenced therein), in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent side letters or other contingencies Contracts, instruments or other commitments, obligations or arrangements (whether written or oral) related to the funding of the full amount of the SpinCo Financing. .
(b) As of the date of this Agreement, the SpinCo Commitment Letter, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of SpinCo and, to the knowledge of SpinCo, the other parties thereto (in each case, subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally and to general principles of equity). As of the date of this Agreement (assuming the accuracy of the representations and warranties and undertakings of RMT Parent and Merger Sub under this Agreement for such purpose), (x) no event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent SpinCo under any term or Merger Subcondition of the SpinCo Commitment Letter and (y) SpinCo is not aware of any fact, as applicable, event or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or occurrence that makes any of the assumptions representations or statements set forth warranties of SpinCo in the Financing Letters SpinCo Commitment Letter inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub SpinCo has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment or fees, any other fees which are due and payable or any other amounts required by the SpinCo Commitment Letter to be paid on or prior to before the date hereof pursuant to of this Agreement. On the terms Distribution Date, assuming the SpinCo Financing is funded in accordance with the SpinCo Commitment Letter, the proceeds of the SpinCo Financing Letterswill be sufficient to pay the Internal Reorganization Cash Payments (the “SpinCo Financing Transactions”). Other than the Fee Letter and as set forth in Schedule 3.10(c)the SpinCo Commitment Letter, there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related conditions precedent to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) SpinCo Financing. As of the date hereofof this Agreement, none and subject to the satisfaction of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of all the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as conditions set forth in the Financing Letters.
(e) As of the date hereofSection 8.01 and Section 8.02, neither Parent nor Merger Sub SpinCo has (i) retained any financial advisor on a basis exclusive no reason to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing believe that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)conditions to the SpinCo Financing that are required to be satisfied by it or any other party to the SpinCo Commitment Letter as a condition to the obligations under the SpinCo Commitment Letter will not be satisfied on a timely basis or that the SpinCo Financing contemplated by the SpinCo Commitment Letter will not be available to SpinCo immediately prior to, or on, the Distribution Date.
Appears in 2 contracts
Sources: Merger Agreement (Rhino SpinCo, Inc.), Merger Agreement (Genuine Parts Co)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below)Purchaser has received and accepted executed and binding commitment letters dated February 3, together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter 2015 (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity FinancingDebt Commitment Letters”) and (ii) the executed commitment letterfrom UBS Securities LLC, dated as of the date hereofUBS AG, from Stamford Branch, Credit Suisse AG, Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, Canada and RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. Markets (the “Debt Commitment Letter” and, together with the Equity Financing Lettercollectively, the “Financing LettersLenders”), pursuant relating to which the lenders party thereto have committedcommitment of the Lenders to provide, subject to the terms and conditions thereof, to lend the amounts set forth full amount of the debt financing stated therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent .
(b) Purchaser has also delivered to the Company a Seller true, complete and correct copy copies of the executed Debt Commitment Letters, attached hereto as Exhibit F (including, the exhibits and annexes thereto), and any fee letter letters (the “Fee Letters”) related thereto (with only fee amounts, dates and certain other economic terms, including in connection with respect of the “market flex” and “securities demand” provisions, redacted) (none of which would adversely affect the amount or availability of the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”Financing).
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained Except as set forth in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Debt Commitment Letters, in the form so delivered to the Company on the date hereof, there are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the no conditions precedent to the obligations of the parties thereunder Lenders to make provide the Debt Financing available or any contingencies that would permit the Lenders to Parent on reduce the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full total amount of the Debt Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Debt Commitment Letters and the Fee Letter and as set forth in Schedule 3.10(c)Letters, there are no side letters or other Contracts to which Parent agreements, contracts or any of its Affiliates is a party related arrangements (except for customary engagement letters) relating to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing LettersDebt Financing.
(d) As of the date hereofThe Debt Financing, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub when funded in connection accordance with the Merger and/or Debt Commitment Letters, together with available cash on hand (taking into account any other restrictions on use and costs of repatriation), will provide Purchaser with cash proceeds on the Closing Date in an amount sufficient to consummate the transactions contemplated by this Agreement other than as set forth in on the Financing Lettersterms contemplated hereby, including the payment of the Purchase Price, and to pay related fees and expenses.
(e) Assuming the satisfaction of the conditions in Sections 8.1 and 8.2, to the Knowledge of Purchaser, there is no fact or occurrence as of the date hereof that would cause the conditions to funding of the Debt Financing not to be satisfied at or before the Closing, and Purchaser has no 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 the Debt Commitment Letters.
(f) The Debt Commitment Letters are valid, binding and enforceable in accordance with their respective terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity), and are in full force and effect, and no event has occurred that, with or without notice, lapse of 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 Purchaser under the terms and conditions of the Debt Commitment Letters. As of the date hereofof this Agreement, neither Parent nor Merger Sub no Debt Commitment Letter or Fee Letter has been amended, restated or otherwise modified or waived, and the respective commitments contained in the Debt Commitment Letters have not been withdrawn, modified or rescinded. Purchaser has paid in full any and all commitment fees or other fees or expenses required to be paid pursuant to the terms of the Debt Commitment Letters on or before the date of this Agreement.
(ig) retained In no event shall the receipt or availability of any financial advisor on a basis exclusive to Parent funds or Merger Sub other than advisors to which the Company Board (financing by Purchaser or any authorized committee thereof) has previously consented of its Affiliates or (ii) entered into an exclusivity, lock-up any other financing or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services transactions be a condition to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Purchaser’s obligations hereunder.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Tronox LTD), Stock and Asset Purchase Agreement (FMC Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all As of the other payment obligations date of Parentthis Agreement, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the an executed commitment letter, dated as of the date hereofof this Agreement, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., between Parent and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. the Guarantor (the “"Equity Commitment Letter") pursuant to which the Guarantor has committed, subject to the terms and conditions thereof, to invest in Parent, directly or indirectly, the cash amounts set forth therein (the "Equity Financing"); and (b) executed commitment letters, dated as of the date of this Agreement, among Merger Sub and the lenders thereto (the "Debt Commitment Letter” Letters" and, together with the Equity Financing Commitment Letter, the “"Financing Letters”), ") pursuant to which the lenders party thereto have committed, subject to the terms and conditions thereof, to lend the amounts set forth therein (the “"Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) " and, together with the Equity Financing, the “"Financing”"). Parent has also delivered to the Company a true, true and complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) Letters (any such fee letter, a “"Fee Letter”") (with only fee information and amounts and certain economic terms relating to market flex having been redacted).
(cb) As of the date hereofof this Agreement, (i) the Financing Letters and the terms of the Financing have not been amended or modified prior to the date of this Agreement except as permitted by this Agreement; and none of (ii) the respective obligations and commitments contained in the Financing Letters therein have not been withdrawn withdrawn, terminated or rescinded in any respect. The Financing LettersAs of the date of this Agreement, there are no other Contracts, agreements, side letters or arrangements to which Parent or Merger Sub 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 form so delivered to 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 on 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 at the Closing by Parent or Merger Sub in connection with the Merger and the Financing.
(d) As of the date hereofof this Agreement, the Financing Letters are in full force and effect as of and constitute the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, Sub and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance including, with their respective terms against Parent and Merger Subrespect to the Equity Commitment Letter, the Guarantor), as applicable, enforceable against Merger Sub and, to the Knowledge knowledge of Parent, each of the other parties thereto, as applicable, in each case accordance with their terms, except as that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ ' rights generallygenerally and by general principles of equity. The Other than as expressly set forth in the Financing Letters and the any Fee Letter 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 Letter, there are no other conditions precedent or other contingencies related to the funding of the full amount proceeds of the FinancingFinancing (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 a party. As of the date of this Agreement, 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, no event has occurred or circumstance exists whichthat, with notice or without notice, lapse of time or both, would would, or would reasonably be expected to to, constitute a default or breach on the part of Parent or Merger Sub or, to the knowledge of Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements other parties thereto pursuant to the Financing Letters. 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, 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 Letters inaccurate to be satisfied by it contained in any material respectthe Financing Letters. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which that are due and payable on or prior to the date hereof of this Agreement pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letter, dated as of on or prior to the date hereof, among Parent, between Merger Sub and the other parties Debt Financing Sources party thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (except that the fee letter is subject to redactions of commercially sensitive information), as may be amended, supplemented or modified in accordance with the terms hereof, collectively, the “Equity Debt Financing SourcesCommitments”), pursuant to which the Equity Debt Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereofand conditions set forth therein, to lend the amounts set forth therein (the “Debt Financing” ”) for the purposes of funding the transactions contemplated by this Agreement, and related fees, costs and expenses, (which term shall includeii) the executed commitment letters, if applicable, high-yield bonds issued in lieu of certain dated as of the debt facilities date hereof, between Parent and each of Biomedical Treasure Limited, Biomedical Future Limited and CC China (2019B) L.P., respectively (including all exhibits, schedules and annexes thereto (if any), as contemplated under may be amended, supplemented or otherwise modified from time to time in accordance with the Debt terms hereof, collectively, the “Equity Commitment LetterLetters”), pursuant to which such Guarantor has committed, subject to the terms and conditions set forth therein, to invest each amount set forth therein (collectively, the “Cash Financing”) and, and (iii) the Support Agreement (together with the Equity Commitment Letters, collectively, the “Equity Financing Commitments” and together with the Debt Financing Commitments, collectively, the “Financing Commitments”), pursuant to which, subject to the terms and conditions therein, the Rollover Securityholders have committed to contribute to Parent, immediately prior to the Effective Time, the number of Rollover Securities set forth therein and to consummate the Merger and other transactions contemplated by this Agreement (together with the Cash Financing, collectively, the “Equity Financing” and together with the Debt Financing, collectively, the “Financing”). Parent has also delivered to Each Equity Financing Commitment provides that the Company is a true, complete third party beneficiary thereof and correct copy of any fee letter entitled to enforce such Equity Financing Commitment in connection accordance with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided terms and conditions set forth therein) (any such fee letter, a “Fee Letter”)
(c) . As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of with respect to, and are the date hereof. The Financing Letters are (i) legal, valid valid, binding and binding enforceable obligations of Parent and of, Parent, Merger Sub, Sub (as applicable, ) and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcycase, insolvency, reorganization, moratorium subject to the Bankruptcy and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all Equity Exception.
(b) None of the conditions precedent Financing Commitments has been amended or modified prior to the obligations date of the parties thereunder to make the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financingthis Agreement. As of the date of this Agreement, no such amendment or modification is contemplated save for any amendment, supplement or modification of the Debt Financing Commitments which is or will be made in compliance with Section 6.11, and the obligations and commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated. Parent or Merger Sub has paid any and all fees that are due and payable on or prior to the date of this Agreement pursuant to the terms and conditions of the Financing Commitments and will pay when due all other fees arising thereunder as and when they become due and payable pursuant to the terms and conditions of the Financing Commitments.
(c) Except as expressly set forth in the Debt Financing Commitments (including any fee letter and customary engagement letters and non-disclosure agreements that do not impact the conditionality, availability or amount of the Financing), as of the date hereof, there are no side letters or Contracts to which Parent or Merger Sub is a party that imposes conditions to, affects, or modifies, amends or expands the conditions to, the availability of funding of the Financing or the transactions contemplated hereby.
(d) As of the date hereof, 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 or Merger SubSub or, as applicable, or to the Knowledge knowledge of Parent, any other parties thereto, under the Financing Letters Commitments that would prevent or that makes any delay Parent’s or Merger Sub’s ability to consummate the transactions contemplated hereunder. The Financing Commitments contain all of the assumptions conditions precedent to the obligations of the parties thereunder to make the applicable Financing available to Parent or statements set forth in Merger Sub on the Financing Letters inaccurate in any material respectterms and conditions therein. As of the date hereof, Parent and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any have no reason to believe that any of the conditions to the Financing contemplated in by the Financing Letters Commitments will not be satisfied or that the Financing will not be made available to Parent or Merger Sub on the Closing Date; provided that Parent and Merger Sub are not making any representations or warranties regarding the conditions set forth in clause (3) in this Section 4.7(d). Assuming (1) the conditions in Section 7.1, Section 7.2(a) and Section 7.2(b) are satisfied or waived, (2) the Financing is funded in accordance with the Financing Commitments and (3) the aggregate amount of Offshore Available Company Cash is at or prior to least US$480,000,000 as at the Closing Date. , Parent and Merger Sub will have fully paid, or caused on the Closing Date funds sufficient to be fully paid, (i) pay the aggregate Per Share Merger Consideration and the other payments under Article II and (ii) pay any and all commitment or other fees which are due and payable on or prior expenses required to be paid by the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any and the Surviving Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any Merger, the other transactions contemplated by this Agreement other than as set forth in and the Financing LettersFinancing.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Centurium Capital Partners 2018, L.P.), Merger Agreement (China Biologic Products Holdings, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct accurate and complete copy copies, including all exhibits and schedules thereto, of (i) the an executed commitment letter Investment Agreement (the “Equity Financing LetterTemasek Investment Agreement”), dated as of the date hereof, among Parentby and between Parent and ▇▇▇▇▇▇ Investments Pte. Ltd (“Temasek”) and an executed Investment Agreement (together with the Temasek Investment Agreement, Merger Sub the “Investment Agreements”), dated as of the date hereof, by and the other parties thereto between Parent and North Island Holdings I, LP (collectivelyNorth Island Holdings I, LP, together with Temasek, the “Equity Financing Sources”), pursuant to which which, and subject to the terms and conditions of which, the Equity Financing Sources have committedwill purchase certain Parent Equity Securities for the purpose of funding the transactions contemplated by this Agreement (such equity financing, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed debt commitment letterletters, each dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. hereof (the “Debt Commitment LetterLetters” and, together with the Equity Financing LetterInvestment Agreements, the “Financing Commitment Letters”), ) pursuant to which the lenders party thereto have committednamed therein (the “Lenders”), subject to the terms thereofand conditions set forth therein, have committed to lend the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement, including the refinancing (the “Refinancing”) of (i) the Company Credit Agreement, (ii) the Third Amended and Restated Credit Agreement dated as of October 27, 2016 (the “Virtu Credit Agreement”) among VHF Parent LLC, as borrower, Virtu Financial LLC, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent, and (iii) the redemption of the Company Notes (such committed debt financing, the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereof, (i) the Financing Commitment Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of and have not been withdrawn or terminated, or amended, restated, waived or modified in any respect and no such amendment, restatement, waiver or modification is contemplated or pending, (ii) the date hereof. The Financing respective commitments contained in the Commitment Letters are (i) legalhave not been withdrawn, valid and binding obligations of Parent and Merger Submodified, as applicable, reduced or rescinded in any respect and, to the Knowledge of Parent, no such withdrawal, modification or rescission is contemplated, and (iii) each of the other parties thereto Commitment Letters, in the form so delivered, is a legal, valid and binding obligation of Parent and/or Merger Sub (ii) 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, enforceable in each case except as such enforceability may be limited by applicable accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other similar laws affecting or Laws of general applicability relating to or affecting creditors’ rights generallyand subject, as to enforceability, to general equity principles. The Financing Letters Except for fee letters with respect to fees and related arrangements with respect to the Fee Letter contain all Debt Financing, of which Parent has delivered true, accurate and complete (other than with respect to the redaction referenced herein) copies to the Company on or prior to the date hereof (which may be redacted to omit numerical amounts and certain economic “flex” terms, none of which would adversely affect the amount or availability of the conditions precedent to the obligations Debt Financing), and as of the parties thereunder to make the Financing available to Parent on the terms therein and date hereof, there are no other conditions precedent agreements, side letters, or other contingencies related arrangements relating to the funding Commitment Letters (other than customary engagement letters with respect to debt securities that may form part of the full Debt Financing (none of which would adversely affect the amount or availability of the Debt Financing) and equity commitment letters entered into in connection with the Equity Financing (the “Equity Commitment Letters”)) that would affect the amount, availability or conditionality of the Financing. 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 or Merger SubSub under any term or condition of the Commitment Letters or, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes would (i) make any of the assumptions or any of the statements set forth in the Financing Commitment Letters inaccurate in any material respect, (ii) result in any of the conditions in the Commitment Letters not being satisfied or (iii) otherwise result in the Financing not being available. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company no Financing Source has notified Parent of its obligations under this Agreement, neither Parent nor Merger Sub has any reason intention to believe that terminate any of the conditions Commitment Letters or not to provide the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing LettersFinancing. Other than the Fee Letter and as set forth in Schedule 3.10(c)the Commitment Letters and the Equity Commitment Letters, there are no side letters or other Contracts to which Parent or conditions precedent (including any of its Affiliates is a party related “flex” provisions) to the funding or investing, as applicable, of the full amount of the Financing other than Financing. Assuming the satisfaction of the conditions in Section 8.1 and Section 8.3 and the commencement and completion of the Marketing Period, as expressly set forth of the date hereof, Parent has no reason to believe that it will be unable to satisfy, on a timely basis, any term or condition of closing to be satisfied by it contained in the Financing LettersCommitment Letters or that the full amounts committed pursuant to the Commitment Letters will not be available as of the Closing. Parent has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letters to be paid on or before the date of this Agreement.
(dc) As of the date hereof, none of assuming that the Financing is funded in accordance with the Commitment Letters, the aggregate proceeds to be disbursed pursuant to the definitive agreements contemplated by the Commitment Letters, together with the cash otherwise available to Parent, in the aggregate, are sufficient for Parent to pay the Merger Sub or any of their respective Affiliates is a party to any ContractsConsideration, or any commitment to enter into any Contractsthe Warrant Consideration, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments all amounts required to be made in, or contributions to be made to, paid by Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including and in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection Refinancing to be consummated concurrently or substantially concurrently with the Merger or consummation of the other transactions contemplated by this Agreement. Neither .
(d) Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any delivered the written consent of the representations holders of a majority of the voting shares of capital stock of Parent approving the issuance of Parent Equity Securities pursuant to the Equity Financing on the terms set forth in this Section 3.10(e)the Investment Agreements.
Appears in 2 contracts
Sources: Merger Agreement (KCG Holdings, Inc.), Merger Agreement (Virtu Financial, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letters, dated as of the date hereof, among Parent, Merger Sub Subsidiary and the other certain lender parties thereto (collectively, the “Equity Debt Financing SourcesCommitments”), pursuant to which the Equity Financing Sources lender parties thereto have committed, subject to the terms and conditions thereof, to invest provide or cause to be provided the cash amounts debt financing set forth therein (including, if applicable, any debt replacement, amended financing or supplement obtained in accordance with Section 6.05, the “Equity Debt Financing”) and (iib) the an executed equity commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLCby and between Irving Place Capital Partners III, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. L.P. (the “Debt Equity Commitment LetterParty”), and Parent (the “Equity Financing Commitment,” and, and together with the Equity Debt Financing LetterCommitments, the “Financing LettersCommitments”), pursuant to which the lenders party thereto have Equity Commitment Party has committed, subject to the terms and conditions thereof, to lend the amounts invest an amount as set forth therein (the “Debt Equity Financing,” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding and enforceable obligations of Parent and Merger SubSubsidiary, as applicablethe case may be, and, and to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all None of the Financing Commitments has been amended or modified since the date of this Agreement in any respect, no such amendment or modification is contemplated by Parent or Merger Subsidiary (or to the knowledge of Parent and Merger Subsidiary, by the other parties thereto), and as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded. Parent has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. There are no 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 precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitments, and except for the fee letter and engagement letter dated the date hereof (complete copies of which have been provided to the Company, with only fee amounts and economic terms (none of which would adversely effect the amount or availability of financing) redacted), there are no side letters or other Contracts relating to the funding or investing of the Financing, other than as set forth in or otherwise permitted by the terms of the Financing Commitments that would permit the lenders under the Debt Financing Commitments or the Equity Commitment Party to reduce the total amount of financing or that would materially affect the availability of the Financing. As of the date 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 or Merger SubSubsidiary or, as applicable, or to the Knowledge knowledge of Parent, any other parties thereto, party thereto under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectCommitments. As of the date hereof, assuming the accuracy of the representations and subject to warranties of the Company in this Agreement and the satisfaction of the conditions set forth in Article VI Section 9.01 and the performance by the Company of its obligations under this AgreementSection 9.02, neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing contemplated in by the Financing Letters Commitments will not be satisfied or that satisfied. The aggregate proceeds contemplated by the Financing Commitments will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent be sufficient to (i) pay the aggregate Merger Consideration and Merger Sub have fully paid, or caused to be fully paid, (ii) pay any and all commitment or other fees which are due and payable on or prior expenses required to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of be paid by Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of Subsidiary and the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub Surviving Corporation in connection with the Merger and/or any other and the Financing.
(b) As of the Effective Time, after giving effect to the consummation of the transactions contemplated by this Agreement other than as set forth and the payment of all fees, costs and expenses payable by Parent with respect to the transactions contemplated hereby and in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent loans or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party agreements in connection with a transaction relating herewith, Parent shall be solvent and able to the Company or pay its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)debts as they come due.
Appears in 2 contracts
Sources: Merger Agreement (Razor Holdco Inc.), Merger Agreement (Thermadyne Holdings Corp /De)
Financing. (a) The aggregate amount of funds contemplated Purchaser has delivered to be provided pursuant to the Financing Letters (as defined below)Seller true, together with the cash on hand of Parent complete and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all correct copies of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed debt commitment letter, dated as of the date hereofDecember 19, from Credit Suisse Securities (USA) LLC2012, between Purchaser and Bank of America, N.A., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ ▇▇& ▇▇▇▇▇ Senior Funding, Inc., Incorporated and Royal Bank of CanadaCanada and the executed fee letters associated therewith (provided, RBC Capital Marketsthat provisions in the fee letters related to fees, SunTrust Bankpricing caps and certain economic terms of the market flex (none of which would adversely affect the amount or availability of the Debt Financing) may be redacted) (such commitment letter, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇together with all exhibits, Inc.schedules, annexes, supplements and The Bank of Tokyo-Mitsubishi-UFJamendments thereto and the fee letters, Ltd. (collectively, the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing LettersCommitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms thereofconditions set forth therein, Bank of America, N.A. and Royal Bank of Canada have agreed to lend the amounts set forth therein (the “Debt Financing” ”) for the purpose of funding the transactions contemplated by this Agreement. The Debt Financing Commitment has not been amended, restated or otherwise modified or waived prior to the date of this Agreement, and no such amendment, restatement, modification or waiver is contemplated (which term shall includeexcept for amendments or modifications permitted by Section 6.11, if applicableand, high-yield bonds issued in lieu of certain as of the debt facilities as contemplated under date hereof, the commitment contained in the Debt Financing Commitment Letter) andhas not been withdrawn, together with terminated or rescinded in any respect. As of the Equity Financingdate hereof, there are, and are contemplated to be, no other agreements, side letters or arrangements relating to the “Financing”Debt Financing Commitment (other than as expressly set forth in the Debt Financing Commitment furnished to Seller pursuant to this Section 5.07(a)). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Debt Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are Commitment is in full force and effect as of and constitutes the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, each of Purchaser and, to the Knowledge knowledge of ParentPurchaser, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this AgreementDebt Financing (including any “flex” provisions), 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 or Merger Sub, other than as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements expressly set forth in the Debt Financing Letters inaccurate Commitment. Assuming performance by Seller of its obligations that are required to be performed prior to the Closing, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Debt Financing Commitment, together with Purchaser’s cash on hand plus proceeds of sales of stock, if any, in lieu of issuance of the Stock Consideration, will be sufficient for Purchaser to pay the Estimated Cash Consideration on the Closing Date, any material respectpayment required to be made by Purchaser pursuant to Section 3.05 and all related fees and expenses and any other payment contemplated in this Agreement. As of the date hereof, (i) no event has occurred that would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Purchaser under the Debt Financing Commitment and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has (ii) Purchaser does not have any reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters will not be satisfied or that the Debt Financing will not be made available to Parent and Merger Sub at or prior to Purchaser on the Closing Date. Parent and Merger Sub have Purchaser has fully paid, or caused to be fully paid, any and paid all commitment fees or other fees which are due and payable required to be paid on or prior to the date hereof pursuant to the terms of the Debt Financing Letters. Other than the Fee Letter and Commitment.
(b) Except as set forth in Schedule 3.10(cotherwise contemplated by Section 6.11(b), there the obligations of Purchaser under this Agreement are no side letters or other Contracts not subject to which Parent or any conditions regarding the ability of Purchaser, any of its Affiliates is a party related or any other Person to obtain financing for the funding or investing, as applicable, consummation of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Lettershereby.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Acquisition Agreement (Arris Group Inc), Acquisition Agreement (Arris Group Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, Purchaser will have sufficient funds to (i) pay enable Purchaser to acquire all the aggregate Per Share Price outstanding Shares in the Offer at the Purchase Date and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with consummate the Merger and at the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunderEffective Time.
(b) Parent and Merger Sub have delivered has provided to the Company a true, complete and correct and complete copy copies of (i) the fully executed commitment letter letter, dated the date of this Agreement, to provide equity financing in an aggregate amount set forth therein (the “Equity Financing Commitment Letter”) and (ii) fully executed commitment letter(s), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto of this Agreement (collectively, the “Equity Financing SourcesDebt Commitment Letter”), ) pursuant to which Credit Suisse (the Equity Financing Sources “Lenders”) have committed, subject to the terms thereof, to invest the cash amounts provide debt financing in an aggregate amount set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated being collectively referred to as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing,” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, financing referred to in clause (i) being collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, neither the Financing Letters have not Equity Commitment Letter or Debt Commitment Letter has been amended or modified modified, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Financing Letters, Parent has fully paid any and all commitment fees or other fees in connection with the form so delivered Equity Commitment Letter and the Debt Commitment Letter that are payable on or prior to the Company on the date hereof, and the Equity Commitment Letter and the Debt Commitment Letter are in full force and effect as of and are the date hereof. The Financing Letters are (i) legalvalid, valid binding and binding obligations enforceable obligation of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the There are no 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 precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or expressly contemplated by the Equity Commitment Letter or the Debt Commitment Letter, respectively. As of the date of this Agreement, no 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 or Merger SubPurchaser under any term or condition of the Equity Commitment Letter and the Debt Commitment Letter and, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent Purchaser at the dates that Purchaser becomes obligated to accept for payment and Merger Sub at or prior to the Closing Date. Parent 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 pay for Shares pursuant to the terms of Offer and at the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related to the funding or investingEffective Time, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Sunterra Corp), Merger Agreement (Diamond Resorts, LLC)
Financing. (a) The aggregate amount Spinco shall use reasonable best efforts to (i) maintain in effect, until the earlier of funds contemplated to be provided pursuant to the initial funding of the Spinco Financing Letters (as defined below) and the replacement of the Spinco Financing with the Permanent Financing (as defined below), together with in each case, in an amount sufficient to fund (and in any event not to exceed) the cash on hand sum of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub Spinco Special Cash Payment and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter Additional Amount (the “Equity Financing LetterSpinco Consideration Amount”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed bridge commitment letter, dated as of the date of this Agreement (including: (A) all exhibits, schedules, annexes and amendments to such agreement in effect as of the date hereof; and (B) any associated fee letters (together, as amended, restated, replaced, supplemented or otherwise modified from time to time in accordance with the terms of this Agreement and thereof, the “Spinco Commitment Letter”)), from Credit Suisse Securities the financing sources party thereto (USAtogether with all additional lenders, agents and financing sources added to the Spinco Commitment Letter, the “Spinco Lenders”), pursuant to which, among other things, the Spinco Lenders have committed to provide Spinco with debt financing in the amount set forth therein (the debt financing contemplated by the Spinco Commitment Letter, together with any amendment, modification, supplement, restatement, substitution or waiver thereof in accordance with the terms of this Agreement being referred to as the “Spinco Financing”), (ii) LLCnegotiate definitive agreements with respect to the Spinco Financing, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., on the terms and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. conditions contained in the Spinco Commitment Letter or on such other terms as are reasonably acceptable to Remainco and RMT Partner (the “Debt Commitment LetterSpinco Financing Agreements”) and negotiate definitive agreements with respect to the Permanent Financing (as defined below) as directed by the RMT Partner in accordance with the immediately following sentence (the “Permanent Financing Agreements” and, together with the Equity Spinco Financing LetterAgreements, collectively, the “Financing LettersAgreements”), pursuant (iii) materially comply with the obligations that are set forth in the Spinco Commitment Letter and the Financing Agreements that are applicable to which Spinco and satisfy (or if deemed advisable by Spinco and RMT Partner, seek a waiver of) on a timely basis all conditions precedent in the lenders party thereto have committedSpinco Commitment Letter and the Financing Agreements that are within its control, and (iv) in the event that all conditions to funding in the Spinco Commitment Letter or the Financing Agreements are satisfied at or prior to the Distribution, consummate the Financing (as defined below) at or prior to the Distribution (subject to Section 8.19(k) with respect to the terms thereofAdditional Amount). Notwithstanding anything to the contrary in this Section 8.19, RMT Partner shall have the right to lend direct Spinco to replace all or a portion of the amounts set forth therein Spinco Financing with (x) the proceeds of consummated capital markets debt or equity (including preferred or other hybrid equity) financing and/or (y) commitments in respect of other long term debt from the same and/or alternative bona fide third-party financing sources (any such financing (which may include any sale or exchange of Spinco Debt Securities), the “Debt Permanent Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Spinco Financing, the “Financing”). Parent has also delivered ) so long as (1) all conditions precedent to effectiveness of definitive documentation for such financing have been satisfied and the conditions precedent to funding of such financing are in the aggregate, in respect of certainty of funding, substantially equivalent to (or more favorable to Spinco than) the conditions precedent set forth in the Spinco Commitment Letter and (2) the terms thereof shall be (A) consistent with the Intended Tax Treatment of the transactions contemplated by the Transaction Documents (as determined by Remainco in good faith in consultation with RMT Partner) and (B) reasonably acceptable to Remainco and Spinco; provided that, if any Financing is proposed to be consummated prior to the Company a trueearlier of (i) February 14, complete 2022 and correct copy (ii) the date of obtaining the Private Letter Ruling, RMT Partner and Remainco shall jointly agree on when to consummate such Financing and no such Financing shall be issued or incurred prior to the satisfaction of the conditions set forth in ARTICLE IX (other than those that would be satisfied by action at the Closing and other than the condition in Section 9.3(h)) without the consent of each of RMT Partner and Remainco, which in each case shall not be unreasonably withheld, conditioned or delayed.
(b) In the event any fee letter funds in connection with the Debt amounts set forth in the Spinco Commitment Letter or the Financing Agreements, as applicable, or any portion thereof, become unavailable on the terms and conditions contemplated in the Spinco Commitment Letter or the Financing Agreements, as applicable, Spinco (in consultation in good faith with RMT Partner, and, with respect to any Alternative Financing (as defined below) that is in the form of the Permanent Financing, at the direction of RMT Partner) shall use its reasonable best efforts to arrange and obtain promptly any such portion from the same or alternative sources, in an amount sufficient, when added to the portion of the Financing that is available, to allow Spinco to fund the Spinco Consideration Amount (the “Alternative Financing”; it being understood that the amount of any Alternative Financing shall not exceed the Spinco Consideration Amount), and obtain a new financing commitment that provides for such fee letter financing; provided that, in each case, (i) the terms of the Alternative Financing must (A) be consistent with the Intended Tax Treatment of the transactions contemplated by the Transaction Documents (including Section 8.19(k) to the Company may be redacted to omit the numerical amounts provided thereinextent applicable) (as determined by Remainco in good faith in consultation with RMT Partner) and (B) be customary and reasonable in light of then-prevailing market terms, (ii) the terms and conditions of the Alternative Financing, taking into account and after giving effect to the Spinco Special Cash Payment, the Securities Exchange, the Merger and the other transactions contemplated hereby, would not reasonably be expected to result in any of Spinco (as the survivor of the Merger) or the RMT Partner having a Below Investment Grade Rating (in each case, as determined by RMT Partner in good faith in consultation with Remainco), (iii) the terms and conditions of the Alternative Financing shall not be materially less favorable, taken as a whole, to Spinco or RMT Partner than those in the Spinco Commitment Letter as in effect on the date hereof and (iv) none of Spinco or any of its Affiliates shall agree (without the consent of RMT Partner (such fee letterconsent not to be unreasonably withheld, a conditioned or delayed)) to any Alternative Financing that would result in the payment of fees or interest rates applicable to Spinco Financing in excess of those contemplated by the Spinco Commitment Letter. As used herein, the term “Fee Spinco Commitment Letter”” shall be deemed to include any new commitment letters entered into in accordance with this Section 8.19(b) and the term “Financing” shall be deemed to include any Alternative Financing obtained in accordance with this Section 8.19(b).
(c) As Each of Spinco and RMT Partner shall give the date hereof, the Financing Letters have not been amended or modified and none other Party prompt written notice upon it obtaining knowledge of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and any material breach (iior threatened material breach) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent default (or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no any event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a default give rise to any material breach or breach on default) by any party to the part of Parent Spinco Commitment Letter or Merger Subthe Permanent Financing Agreements, as applicable, (ii) any actual or to the Knowledge threatened withdrawal, repudiation or termination of Parent, any other parties thereto, under the Financing Letters or that makes by any of the assumptions Financing Sources and (iii) any material dispute or statements disagreement between or among any of the parties to the Spinco Commitment Letter or the Permanent Financing Agreements, as applicable; provided that in no event shall Spinco or RMT Partner be under any obligation to disclose any information pursuant to clauses (i), (ii) or (iii) that would waive the protection of attorney-client or similar privilege if Spinco or RMT Partner shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. Neither Spinco nor RMT Partner shall, without the prior written consent of the other Party, amend, modify, supplement, restate, substitute, replace, terminate, or agree to any waiver under the Spinco Commitment Letter or the Permanent Financing Agreements, as applicable, in a manner that (i) (A) reduces the aggregate amount of the Financing such that the aggregate funds that would be available to Spinco on the date of Distribution would not be sufficient to provide the funds required to fund the Spinco Consideration Amount or (B) increases the aggregate amount of the Financing such that the aggregate funds would exceed the Spinco Consideration Amount, (ii) adds or expands on the conditions precedent to the funding of the Financing as set forth in the Spinco Commitment Letter as in effect on the date hereof or the Permanent Financing Letters inaccurate Agreements, as applicable, in a manner that could materially delay or prevent or make materially less likely the funding of the Financing on the date of Distribution or (iii) materially adversely affects the ability of Spinco to enforce its rights against the Spinco Lenders under the Spinco Commitment Letter as in effect on the date hereof or against the Financing Sources with respect to the Permanent Financing under the Permanent Financing Agreements, as applicable; provided that notwithstanding the foregoing, Spinco may (in consultation with RMT Partner) (i) implement or exercise any of the “market flex” provisions exercised by the Spinco Lenders in accordance with the Spinco Commitment Letter as of the date hereof or (ii) amend and restate the Spinco Commitment Letter or otherwise execute joinder agreements to the Spinco Commitment Letter solely to add additional Spinco Lenders.
(d) Until the earliest of the Closing, the valid termination of this Agreement in accordance with Article X and the replacement of the Spinco Financing with Permanent Financing, each of RMT Partner and Merger Sub shall provide to Spinco and the Spinco Lenders, and shall use reasonable best efforts to cause RMT Partner’s Subsidiaries and RMT Partner’s Representatives to provide to Spinco and the Spinco Lenders, on a timely basis, such cooperation that may be reasonably requested by Spinco or the Spinco Lenders in connection with the arrangement and consummation of the Spinco Financing, including: (i) participation in, and assistance with, the marketing efforts related to the Spinco Financing, including causing its management team, with appropriate seniority and expertise, and other representatives and advisors to assist in preparation for and to participate in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Spinco Lenders, other prospective financing sources and rating agencies, in each case, upon reasonable notice and at mutually agreeable dates and times, provided that any such meeting or communication may be conducted virtually by videoconference or other media; (ii) delivery to Spinco and the Spinco Lenders as promptly as reasonably practicable and in any material respect. As event at least four Business Days before the date of the Distribution of documentation and other information reasonably requested by the Spinco Lenders with respect to applicable “know-your-customer” and anti-money laundering rules and regulations at least nine Business Days before the date of the Distribution; (iii) as promptly as reasonably practicable after the date hereof, and subject to providing (A) financial statements of RMT Partner necessary for the satisfaction of the conditions set forth in Article VI paragraphs 5(c) and the performance by the Company 5(d) of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any Exhibit B of the conditions to the Financing contemplated Spinco Commitment Letter (as in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which are due and payable effect on or prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof) (it being understood that RMT Partner’s public filing with the SEC of any such financial statements will satisfy such requirements), none (B) pro forma financial statements referred to in paragraph 5(e) of Parent, Merger Sub or any Exhibit B of the Spinco Commitment Letter (as in effect on the date hereof) (with the cooperation of Remainco and Spinco and their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person Subsidiaries (including any Company Stockholder, director, officer or employee of the Company or its Spinco Subsidiaries) concerning any investments pursuant to be made in, or contributions to be made to, Parent or Merger Sub clause (e)(iii)(B) below) and (C) such financial and other information of RMT Partner customarily required in connection with the Merger and/or execution of financings of a type similar to the Spinco Financing as Spinco or the Spinco Lenders shall reasonably request and using commercially reasonable efforts to update such information from time to time as necessary to ensure such information does not contain any other transactions contemplated by this Agreement other than as set forth untrue statement of a material fact or omit to state any material fact necessary in order to make the statements contained therein not misleading; (iv) assisting Spinco and the Spinco Lenders in the preparation of (A) syndication documents and materials, including bank information memoranda (confidential and public), lender and investor presentations and similar documents for the Spinco Financing Lettersand (B) materials for rating agency presentations, and similar documents in connection with the Spinco Financing, and in each case, providing reasonable and customary authorization letters to the Spinco Lenders authorizing the distribution of information to prospective lenders and other financing sources; (v) requesting that its independent accountants provide, and using commercially reasonable efforts to cause them to provide, customary comfort letters (including “negative assurance” comfort), customary agreed upon procedures letters (if required) and consents for use of their reports, on customary terms and consistent with customary practice in connection with any Spinco Financing; and (vi) consulting in good faith on the terms and conditions of any Spinco Financing.
(e) As Until the earlier of the Closing and the valid termination of this Agreement in accordance with Article X, each of Remainco and Spinco and their respective Subsidiaries (including the Spinco Subsidiaries) shall provide to RMT Partner and the Financing Sources, and shall use reasonable best efforts to cause the Spinco Subsidiaries and Spinco’s and Remainco’s Representatives to provide to RMT Partner and the Financing Sources, on a timely basis, such cooperation that may be reasonably requested by RMT Partner or the Financing Sources in connection with the arrangement and consummation of the Permanent Financing and (if applicable) the RMT Equity Financing, including: (i) participation in, and assistance with, the marketing efforts related to the Permanent Financing and (if applicable) the RMT Equity Financing, including causing its management team, with appropriate seniority and expertise, and other representatives and advisors to assist in preparation for and to participate in a reasonable number of meetings, presentations, due diligence sessions, drafting sessions and sessions with the Financing Sources, other prospective financing sources and rating agencies, in each case, upon reasonable notice and at mutually agreeable dates and times, provided that any such meeting or communication may be conducted virtually by videoconference or other media; (ii) delivery to RMT Partner and the Financing Sources as promptly as reasonably practicable and in any event at least four Business Days before the date of the Distribution of documentation and other information reasonably requested by the Financing Sources with respect to applicable “know-your-customer” and anti-money laundering rules and regulations at least nine Business Days before the date of the Distribution; (iii) as promptly as reasonably practicable after the date hereof, neither Parent nor Merger Sub has providing (iA) retained any financial advisor statements of the Spinco Entities necessary for the satisfaction of the conditions set forth in paragraphs 5(a) and 5(b) of Exhibit B of the Spinco Commitment Letter (as in effect on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposaldate hereof), (B) historical financial information regarding Spinco and the Spinco Subsidiaries reasonably requested by RMT Partner or the Financing Sources to permit RMT Partner to prepare the pro forma financial statements referred to in paragraph 5(e) of Exhibit B of the case of clauses Spinco Commitment Letter (ias in effect on the date hereof) and (ii), in connection with the Merger or the c) such other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).finan
Appears in 2 contracts
Sources: Merger Agreement (At&t Inc.), Merger Agreement (Discovery, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the an executed commitment letter (the “from each of ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Financing Letter”)Fund VI, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLCL.P., ▇▇▇▇▇▇ ▇▇▇▇. ▇▇▇ Senior FundingParallel Fund VI, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇L.P. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Parallel (DT) Fund VI, L.P. (collectively, “THL”) (such commitment letter together with the Stock Purchase Agreement (as defined in such commitment letter) and the other agreements contemplated by such commitment letter or the Stock Purchase Agreement, the “Initial Equity Financing Letter”) to make an equity investment in Black Knight Financial Services, Inc., a Subsidiary of Parent and The Bank the parent company of Tokyo-Mitsubishi-UFJSub (“NewCo”), Ltd. subject to the terms and conditions therein, in cash in the aggregate amount set forth therein (the “Initial Equity Financing”), and (ii) an executed commitment letter and Redacted Fee Letter from the financial institutions identified therein (collectively, the “Initial Debt Commitment LetterFinancing Commitment” and, together with the Initial Equity Financing LetterCommitments, the “Initial Financing LettersCommitments”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend debt financing in the amounts set forth therein (being collectively referred to as the “Initial Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Initial Equity Financing, collectively referred to as the “Initial Financing”). For purposes of this Section 3.02(g), in the event that Parent has also delivered obtains Additional Financing Commitments, the representations and warranties set forth in this Section 3.02(g) shall be deemed to be made with respect to both the Initial Financing Commitments and the Additional Financing Commitments; provided that with respect to the Company a trueAdditional Financing Commitments and the Additional Financing, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided references to the Company may “date of this Agreement” or the “date hereof” shall be redacted deemed to omit be references to the numerical amounts provided therein) (any such fee letter, a “Fee Letterdate of the Adjustment Notice”)
(c) . As of the date hereof, neither of the Equity Financing Letters have not Commitments nor the Debt Financing Commitment has been amended or modified modified, no such amendment or modification is contemplated (other than amendments or modifications permitted by Section 5.09(a)), and none of the respective obligations and commitments contained in the Financing Letters such letters have been withdrawn withdrawn, terminated or rescinded in any respect. The Parent or Sub has fully paid any and all commitment fees or other fees in connection with the Financing LettersCommitments that are payable on or prior to the date of this Agreement. Assuming (A) the Financing is funded in accordance with the Financing Commitments, (B) the accuracy in all material respects of the representations and warranties set forth in Section 3.01(c) as of the date hereof and (C) compliance in all material respects by the Company with its covenants and agreements under Section 4.01(a), the net proceeds contemplated by the Financing Commitments, together with Parent and Company cash on hand, will in the form so delivered aggregate be sufficient for Parent, Sub and the Surviving Corporation to pay the Company on aggregate Cash Consideration, all requisite payments of cash in lieu of fractional shares pursuant to Section 2.02(i), all requisite payments of dividends or other distributions pursuant to Section 2.01(c) and/or Section 2.02(j), Restricted Stock Consideration, Option Payments, payments in respect of the Designated Matching Contributions and the Retention Incentive Award Consideration (and any repayment or refinancing of debt required as a result of the Transactions) and any other amounts required to be paid in connection with the consummation of the Transactions and to pay all related fees and expenses of Parent, Sub and the Surviving Corporation (collectively, the “Required Closing Cash Payments”) . As of the date hereof, are in full force and effect as of the date hereof. The Debt Financing Letters are Commitment is (ix) the legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of ParentParent and Sub, each of the other parties thereto and thereto, (iiy) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge of ParentParent and Sub, each of the other parties thereto, in each case except subject, as such enforceability may be limited by applicable to enforceability, to bankruptcy, insolvency, reorganization, moratorium insolvency and other similar laws affecting or Laws of general applicability relating to or affecting creditors’ ' rights generallyand to general equity principles and (z) in full force and effect. The Equity Financing Letters Commitment is (x) the legal, valid and the Fee Letter contain all binding obligation of Parent and Sub and each of the conditions precedent to the obligations of other parties thereto, (y) enforceable in accordance with its terms against the parties thereunder thereto, subject, as to make the Financing available enforceability, to Parent on the terms therein bankruptcy, insolvency and there are no other conditions precedent Laws of general applicability relating to or other contingencies related affecting creditors' rights and to the funding of the general equity principles and (z) in full amount of the Financingforce and effect. As of the date of this Agreement, 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 or Merger SubSub or, as applicable, or to the Knowledge of Parent, any other parties thereto, thereto under the Financing Letters Commitments; provided that Parent is not making any representation or that makes warranty regarding the effect of (A) any of inaccuracy in the assumptions or statements representations and warranties set forth in Article III hereof or (B) the failure by the Company to comply with any covenant or agreement herein, as applicable. No event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Sub or any other parties thereto under the Equity Financing Letters inaccurate in any material respectCommitment. As of the date hereofof this Agreement, and subject assuming satisfaction or (to the satisfaction extent permitted by Law) waiver of the conditions set forth in Article VI to Parent's and Sub's obligation to consummate the performance by the Company of its obligations under this Agreement, Merger neither Parent nor Merger Sub has have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger or Sub at or prior to on the Closing Date. Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment There are no conditions precedent or other fees which are due and payable on or prior contingencies related to the date hereof pursuant to the terms funding of the Financing Letters. Other full amount of the Financing, other than the Fee Letter and as expressly set forth in Schedule 3.10(c)the Financing Commitments. As of the date of this Agreement, there are no side letters Contracts or other Contracts agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) to which Parent or any of its Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly contained in the Financing Commitments and delivered to the Company prior to the date hereof. Other than the Initial Equity Financing Letter and, if applicable, the Additional Financing Commitments, there are no Contracts or other agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) between Parent or any of its Affiliates, on the one hand, and THL or any of its Affiliates, on the other hand, which (A) contains additional or adversely modified conditions or other contingencies to the availability of the Equity Financing relative to those contained in the Equity Financing Commitments, (B) would otherwise reasonably be expected to prevent or materially impair or delay the funding of the Equity Financing (or satisfaction of the conditions to the Equity Financing) on the Closing Date or the Closing, (C) adversely impacts the ability of Parent or Sub to enforce its rights against the other parties to the Equity Financing Commitments or (D) reduces the aggregate amount of the Equity Financing set forth in the Equity Financing LettersCommitments.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Fidelity National Financial, Inc.), Merger Agreement (Fidelity National Financial, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies of (i) the executed commitment letter letters (as the same may be amended pursuant to Section 6.09(b), the “Equity Debt Financing LetterCommitments”), dated as set forth in Section 4.06 of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”)Parent Disclosure Letter, pursuant to which the Equity Financing Sources lender parties thereto have committedagreed, subject to the terms and conditions thereof, to invest provide or cause to be provided the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the debt amounts set forth therein (the “Debt Financing”), and (ii) an executed equity commitment letter (the “Equity Financing Commitment,” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Debt Financing Commitment, the “Financing Commitments”), as set forth in Section 4.06 of the Parent Disclosure Letter, pursuant to which ONCAP Investment Partners II, L.P. has committed, subject to the terms and conditions thereof, to invest the amount set forth therein (the “Equity Financing,” and together with the Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, none of the Financing Letters have not Commitments has been amended or modified modified, and none of the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn or rescinded in any respectrescinded. The Financing Letters, Other than as set forth in the form so delivered to the Company on the date hereofFinancing Commitments, there are in full force and effect as of the date hereof. The Financing Letters are (i) legalno other written or oral agreements, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of understandings or Contracts between Parent, each Sub or any of their Affiliates and the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium Financing Commitments and other similar laws affecting their Affiliates that (A) adversely amend or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of expand upon the conditions precedent to the obligations of Financing as set forth in such Financing Commitment, (B) would reasonably be expected to delay or hinder the parties thereunder to make Closing or (C) reduce the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full aggregate amount of the available Financing. As of the date of this Agreement, (i) the Financing Commitments are in full force and effect and a legal, valid and binding obligation of Parent, Sub and their Affiliates party to such Financing Commitments and, to the knowledge of Parent, the other parties thereto and (ii) neither Parent nor Sub is in breach of any of the terms or conditions set forth therein and, to the knowledge of Parent, no fact, occurrence, condition or event exists or has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would could reasonably be expected to constitute a default breach or breach on the part of Parent or Merger Sub, as applicable, or failure to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements satisfy a condition precedent set forth in the Financing Letters inaccurate in any material respect. As of Commitments or that would reasonably be expected to cause the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated commitments provided in the Financing Letters will not Commitments to be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Dateterminated. Parent and Merger Sub have fully paid, or caused to be fully paid, paid any and all commitment or and other fees which that have been incurred and are due and payable on or prior to the date hereof pursuant in connection with the Financing Commitments. Subject to the terms and conditions of this Agreement (including the accuracy of the Financing Letters. Other than the Fee Letter Company’s representations and as set forth warranties in Schedule 3.10(cSection 3.03 and 3.13), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parentthe aggregate proceeds contemplated by the Financing Commitments, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, together with any Person (including any Company Stockholder, director, officer or employee the available cash of the Company or its Subsidiaries) concerning any investments on the Closing Date, will be sufficient for Parent and Sub to be made in, or contributions to be made to, Parent or Merger Sub in connection with pay the Merger and/or any other transactions contemplated by this Agreement other than as set forth in Consideration, Restricted Share Consideration, and the Financing Letters.
(e) As of Option Consideration upon the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions terms contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced , and to pay all related fees and expenses associated with the Transactions (including any Person to take any action thatand all change in control payments), if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any including payment of the representations in all amounts under Article II of this Section 3.10(e)Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Sport Supply Group, Inc.), Merger Agreement (Sage Parent Company, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a Stockholder true, correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereof, among ParentParent and AIF VII Euro Holdings, Merger Sub and the other parties thereto L.P. (collectively, the “Equity Financing SourcesCommitment Letter”), pursuant to which the Equity Financing Sources have AIF VII Euro Holdings, L.P. has committed, subject to the terms and conditions thereof, to invest the cash amounts set forth therein in the manner set forth therein, and of which Stockholder is a third-party beneficiary and entitled to specific performance of the terms thereof (the “Equity Financing”) and (ii) the executed commitment letterletter(s), dated as of the date hereof, from Credit Suisse Securities (USA) LLCamong Merger Sub and each of Bank of America, N.A. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. Inc. (the “Debt Commitment Letter” and, together with the Equity Financing Commitment Letter, the “Financing Letters”), pursuant to which the lenders party counterparties thereto have committed, subject to the terms and conditions thereof, to lend to Merger Sub the amounts set forth therein therein, of which no less than $50,000,000 of commitments will be made available to Merger Sub under a revolving credit facility (the “Credit Facility”), (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered The amounts to be provided pursuant to the Company a trueEquity Financing, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable if funded in accordance with their respective the terms against Parent and Merger Subof the Equity Commitment Letter, as applicablewill be sufficient for Parent, andwhen required, to the Knowledge of Parentcontribute sufficient cash to Merger Sub such that Merger Sub will have, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent immediately prior to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related Closing, without giving effect to the funding of Debt Financing, cash in the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements amounts set forth in the Financing Letters inaccurate in any material respectEquity Commitment Letter. As At the Closing, assuming the consummation of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of ParentDebt Financing, Merger Sub or any of their respective Affiliates is a party shall have cash in amount sufficient to pay the Closing Payment (without regard to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (iEstimated Working Capital Adjustment) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Pre-Closing Dividend.
Appears in 2 contracts
Sources: Merger Agreement (EVERTEC, Inc.), Merger Agreement (Popular Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies, as of the date of this Agreement, of (i) the executed commitment letter letters (the “Equity Financing LetterFunding 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 hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereofthis Agreement, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of CanadaCitigroup Global Markets Inc., RBC Capital Markets, SunTrust JPMorgan Securities Inc. and JPMorgan Chase Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. N.A. (the “Debt Commitment LetterLetters” and, together with the Equity Financing LetterFunding Letters, the “Financing Letters”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend the amounts debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing” (which term shall include”, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, Financing collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, none of the Financing Equity Funding Letters have not or Debt Commitment Letters has been amended or modified modified, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Financing Letters, Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the form so delivered Equity Funding Letters and the Debt Commitment Letters that are payable on or prior to the Company on the date hereofhereof and, are in full force and effect as of the date hereof. The Financing , 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 (i) legalthe valid, valid binding and binding enforceable obligations of Parent and Merger Sub, as applicable, and, and to the Knowledge of Parent, each of the other parties thereto and (ii) 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. 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 each case except as such enforceability may the aggregate be limited 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 applicable bankruptcythis 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, insolvencyno event has occurred which, reorganizationwith or without notice, moratorium 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 other similar laws affecting 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 relating that the Financing will not be available to creditors’ rights generallyParent 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 and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letterstherein.
(db) As of the date hereof, none of Neither Parent, Merger Sub or nor any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee member of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub Equity Provider Group has (i) retained any financial advisor on a an exclusive basis exclusive to Parent or Merger Sub other than advisors to which Affiliates of any member of the Company Board (or any authorized committee thereof) has previously consented Equity Provider Group or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding 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 explicitly prohibits could reasonably be expected to prevent (or otherwise hinder) such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Takeover Proposal)), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this AgreementTransactions, 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 nor 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 Parent, Merger Sub or Merger Subany member of the Equity Provider Group, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e4.5(b).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Avaya Inc)
Financing. Parent has delivered to the Company a true and complete copy of (ai) The the Equity Commitment Letter, pursuant to which, upon the terms and subject to the conditions set forth therein, OTPP has committed to provide the financing in the amount set forth therein (the “Equity Financing”) and (ii) the Debt Commitment Letter, pursuant to which, upon the terms and subject to the conditions set forth therein, ▇▇▇▇▇ Fargo Bank, National Association has committed to provide financing up to the aggregate amount set forth therein for the purposes set forth in the Debt Commitment Letter (the “Debt Financing”). Assuming the accuracy of funds contemplated the representations and warranties set forth in Article III and the performance by the Company of its obligations under this Agreement, the aggregate proceeds to be provided disbursed pursuant to the Financing Letters (as defined below), agreements contemplated by Equity Commitment Letter and the Debt Commitment Letter and together with available cash, cash equivalents and marketable securities of the cash on hand of Parent and its SubsidiariesCompany, is sufficientin the aggregate, if funded, will be sufficient to (i) pay fund the payment of the aggregate Per Share Price and any other repayment or refinancing Transaction Consideration in respect of Indebtedness contemplated by the Financing Letters; Common Shares, (ii) pay any and all fees and expenses required to be paid by Parent, Merger Parent and Acquisition Sub and the Surviving Corporation in connection with the Merger Amalgamation and the Financing; Equity Financing and (iii) satisfy all of the other payment obligations of Parent, Merger Parent and Acquisition Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as . As of the date hereofof this Agreement, among Parent, Merger Sub each of the Equity Commitment Letter and the other Debt Commitment Letter is in full force and effect and, to the knowledge of Parent and Acquisition Sub, is a legal, valid and binding obligation of each of the parties thereto thereto, in each case, except as enforcement thereof may be limited by (collectivelyA) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and any implied covenant of good faith and fair dealing, or remedies in general, as from time to time in effect, or (B) the “Equity Financing Sources”), pursuant to which exercise by courts of equity powers. Neither the Equity Financing Sources have committedCommitment Letter nor the Debt Commitment Letter has been amended, subject supplemented or otherwise modified prior to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as date of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.this Agreement, and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with commitment contained in the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under Commitment Letter or the Debt Commitment Letter) and, together with the Equity Financingas applicable, the “Financing”). Parent has also delivered not, prior to the Company a truedate of this Agreement, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letterbeen withdrawn, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn terminated or rescinded in any respect. The Financing LettersThere are no other agreements, in the form so delivered side letters or arrangements relating to the Company on Equity Commitment Letter or the date hereofDebt Commitment Letter that could affect the availability or aggregate amount of the Equity Financing or the Debt Financing, are in full force as applicable. The Equity Commitment Letter does not violate the fund documents of OTPP and effect as OTPP has the ability to make capital calls sufficient to satisfy its obligations under the Equity Commitment Letter. As of the date hereof. The Financing Letters are (i) legalof this Agreement, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of under the Equity Financing or the Debt Financing, other than as set forth in or contemplated by the Equity Commitment Letter or the Debt Commitment Letter, as applicable. As of the date of this Agreement, no 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, Acquisition Sub under the Financing Letters Equity Commitment Letter or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectDebt Commitment Letter. As of the date hereof, and subject to Assuming the satisfaction of the conditions set forth in Article VI to Acquisition Sub’s obligation to consummate the Amalgamation and the performance by the Company of its obligations under this Agreement, as of the date of this Agreement, neither Parent nor Merger Acquisition Sub has any reason to believe that any of the conditions to the Equity Financing contemplated in by the Equity Commitment Letter or the Debt Financing Letters contemplated by the Debt Commitment Letter will not be satisfied or that the Equity Financing or the Debt Financing will not otherwise be made available to Parent and Merger or Acquisition Sub at or prior on the Closing Date to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Lettersextent necessary.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Amalgamation Agreement, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (Attached hereto as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to Exhibit 4.7 are (i) pay the aggregate Per Share Price a Senior Facilities Commitment Letter from Dresdner Kleinwort Bens▇▇ ▇▇▇th America LLC ("DKBNA") and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; Dresdner Bank AG, New York and Grand Caymans Branch (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”"Dresdner"), dated as of the date hereof, among Parentwhich provides for a commitment for senior debt financing in an aggregate principal amount of up to $50,000,000, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment lettera Senior Subordinated Notes Commitment Letter from DKBNA, Dresdner and Dresdner AG, Hamburg Branch, dated as of the date hereof, which provides for a commitment for subordinated debt financing in an aggregate principal amount of $10,000,000, (iii) a letter from Credit Suisse Securities Dicom Group plc, dated as of the date hereof, which provides for a commitment of equity financing of $4,000,000, (USAiv) LLC, ▇▇▇▇a letter from Dresdner Kleinwort Bens▇▇ ▇▇▇▇▇▇▇ Senior Fundingvate Equity Partners LP, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities dated as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, which provides for a commitment of equity financing of $16,000,000 (collectively, the Financing Letters have not been amended or modified and none of "Commitment Letters"). Assuming the respective obligations and commitments contained in financings contemplated by the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Commitment Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable consummated 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to thereof, the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance amounts received thereunder by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. will provide Parent and Merger Sub have fully paid, or caused with sufficient funds to be fully paid, any pay the aggregate amount payable in respect of the Shares and all commitment or other fees which are due the Stock Options upon the consummation of the Offer and payable on or prior to the date hereof pursuant to Merger in accordance with the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused is presently aware of any facts or induced any Person to take any action that, if taken by circumstances which create a reasonable basis for Parent or Merger Sub, would Sub to believe that the conditions precedent set forth in the Commitment Letters will not be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)satisfied.
Appears in 2 contracts
Sources: Merger Agreement (Kofax Image Products Inc), Merger Agreement (Silver David S)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy of copies of: (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereofAugust 4, from Credit Suisse Securities (USA) LLC2011 between Parent, Bank of America, N.A., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Senior FundingIncorporated, Barclays Bank PLC, Barclays Capital, the investment banking division of Barclays Bank, Citigroup Global Markets Inc., Royal Bank of CanadaCredit Suisse AG, RBC Capital MarketsCredit Suisse Securities (USA) LLC, SunTrust JPMorgan Chase Bank, SunTrust N.A. and ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Securities LLC (collectively, Inc.the “Debt Financing Sources”) and excerpts of those portions of the Fee Letter and any other executed fee letter and engagement letter associated therewith that contain any conditions to funding or “flex” provisions or other provisions (excluding provisions related solely to fees and economic terms (other than covenants) agreed to by the parties) regarding the terms and conditions of the financing to be provided by such commitment letter (such commitment letter, including all exhibits, schedules, annexes and The Bank of Tokyo-Mitsubishi-UFJamendments thereto and each such fee letter and engagement letter, Ltd. collectively, (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing LettersCommitment”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms thereofconditions set forth therein, the Debt Financing Sources have agreed to lend the amounts set forth therein (the “Debt Financing”) for the purpose of funding the Transactions; (ii) the executed equity commitment letter, dated as of August 4, 2011 among Sophia Holding I and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners VI, L.P. and the other parties thereto (collectively, the “Investors”) (the “Transaction Equity Financing Commitment” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Debt Financing Commitment, the “Transaction Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Transaction Equity Financing” and together with the Debt Financing, the “Transaction Financing”); and (iii) the executed equity commitment letter, dated as of August 4, 2011 among Datatel and the Investors (the “Termination Fee Equity Financing Commitment” and together with the Transaction Financing Commitments, the “Financing Commitments”), pursuant to which, upon the terms and subject to the conditions set forth therein, each of the Investors has committed to invest the cash amount set forth therein (the “Termination Fee Equity Financing” and together with the Transaction Financing, the “Financing”). Parent has also delivered None of the Financing Commitments have been amended or modified prior to the Company date of this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, there are no other agreements, side letters or arrangements to which Parent or Merger Sub is a true, complete and correct copy party relating to any of any fee letter in connection with the Debt Commitment Letter (it being understood Financing Commitments that any such fee letter provided to could affect the Company may be redacted to omit availability of the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) Financing. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of and constitute the date hereof. The Financing Letters are (i) legal, valid and binding obligations of each of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the There are no 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 precedent or other contingencies related to the funding of the full amount net proceeds of the Financing. As of the date of this Agreement, 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 or Merger Sub, Financing (including any “market flex” provisions) other than as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements expressly set forth in the Financing Letters inaccurate in any material respectCommitments. As of the date hereof, and subject to Assuming the satisfaction of the conditions set forth in Article VI Section 8.3(a) and Section 8.3(b), or Section 8.3(a) and Section 8.3(b) of the Asset Purchase Agreement, as applicable, the aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Transaction Financing Commitments, in the aggregate and together with the available cash, cash equivalents and marketable securities of Datatel and its Subsidiaries, will be sufficient for Parent and the performance by Surviving Corporation to pay the Merger Consideration, Purchaser Company to pay the Purchase Price, Datatel and each of its obligations Subsidiaries to refinance their outstanding Indebtedness that is required by its terms to be refinanced in connection with the consummation of the Transactions and the Datatel Entities and their respective Subsidiaries to pay the fees and expenses of the Datatel Entities and the SunGard Entities (to the extent reimbursable under this AgreementSection 7.15) related to the foregoing. As of the date hereof, no event has occurred which would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Parent under any of the Financing Commitments, and neither Parent Sophia Holding I nor Merger Sub Datatel has any reason to believe that any of the conditions to any of the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Sophia Holding I or Datatel, as applicable, on the date of the Applicable Closing or, in the case of the Termination Fee Equity Financing, on the date the Parent and Merger Sub at or prior to the Closing DateTermination Fee is payable in accordance with Section 9.2(b). Parent and Merger Sub The Datatel Entities have fully paid, or caused to be fully paid, any and paid all commitment fees or other fees which are due and payable required to be paid on or prior to the date hereof pursuant to the terms Financing Commitments. Except as otherwise contemplated by Section 9.4, the obligations of the Financing Letters. Other than Datatel Entities under this Agreement and the Fee Letter and as set forth in Schedule 3.10(c), there Asset Purchase Agreement are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party not subject to any Contracts, or any commitment conditions regarding their ability to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of obtain financing for the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing LettersTransactions.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Sungard Capital Corp Ii), Merger Agreement (GL Trade Overseas, Inc.)
Financing. Buyer has received, accepted and agreed to, all applicable commitment fees for (a) The a valid and binding commitment letter from certain lenders (the "DEBT FINANCING COMMITMENT LETTER"), committing them to provide to the Buyer debt financing for the Transactions in an aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed$3,535,000,000, subject to the terms thereof, to invest the cash amounts and conditions set forth therein (such debt financing, the “Equity Financing”"DEBT FINANCING") and (iib) a valid, binding and irrevocable commitment letter from certain equity investors (the executed commitment letter"EQUITY FINANCING COMMITMENT LETTER"), dated as committing them to provide equity financing to Buyer in the amount of $1,500,000,000, minus the actual amount of the date hereofequity contributions made by affiliates or assignees of The Carlyle Group and Welsh, from Credit Suisse Securities (USA) LLCCarson, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ to Buyer pursuant to the "Equity Financing Commitment Letter" under the Dexter Purchase Agreement, subject to the terms and conditions set forth therein (such equity financing, the "▇▇▇▇▇▇ EQUITY FINANCING" and together with the Debt Financing, the "FINANCING"). True and complete copies of the Debt Financing Commitment Letter and the ▇▇▇, Inc., ▇▇▇ Equity Financing Commitment Letter and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Dexter "Equity Funding Commitment Letter” and" are attached as Exhibit N, together with the Equity Financing LetterExhibit O and Exhibit P to this Agreement, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”)respectively. Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Debt Financing Letters have not been amended or modified Commitment Letter and none of the respective obligations and commitments contained in the Equity Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitment Letter are in full force and effect as effect. True and complete copies of the date hereof. The any agreements or understandings relating to Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, Fees have been delivered to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 Qwest Parties prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Lettershereof.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Purchase Agreement (Dex Media West LLC), Purchase Agreement (Dex Media Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (ia) the a fully executed commitment letter (the “Equity Financing Letter”), dated as of on or about the date hereofof this Agreement (together with all exhibits, among Parentannexes, Merger Sub schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the other parties thereto (collectivelydate of this Agreement in compliance with Section 5.04, the “Equity Financing SourcesFunding Letter”), pursuant to which ) from the Equity Financing Sources have committedGuarantors providing for an equity investment in Parent, subject to the terms thereofand conditions therein, to invest in cash in the cash amounts aggregate amount set forth therein (the “Equity Financing”) and (iib) the a fully executed commitment letter, letter and Redacted Fee Letter dated as of on or about the date hereofof this Agreement from the financial institutions identified therein (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from Credit Suisse Securities (USA) LLCtime to time after the date of this Agreement in compliance with Section 5.04, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingcollectively, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Funding Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committedproviding, subject to the terms thereofand conditions therein, to lend for debt financing in the amounts set forth therein (being collectively referred to as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, neither of the Financing Letters have not has been amended or modified and modified, and, to the Knowledge of Parent, no such amendment or modification is contemplated, and, to the Knowledge of Parent, none of the respective obligations and commitments contained in the Financing Letters such letters have been withdrawn withdrawn, terminated or rescinded in any respectrespect and, to the Knowledge of Parent, no such withdrawal, termination or rescission is contemplated. The Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Financing Letters that are payable on or prior to the date of this Agreement and will continue to pay in full any such amounts required to be paid pursuant to the terms of the Financing Letters as and when they become due and payable on or prior to the Closing Date. Assuming (i) the Financing is funded in accordance with the Financing Letters, (ii) the accuracy in all material respects of the representations and warranties set forth in Sections 3.02, 3.05(b) and (c), 3.06(b) (as it relates to Section 5.01(b)(i)) and 3.16(a)(ii) and (iii) the performance by the Company and its Subsidiaries of the covenants and agreements contained in Sections 5.01(b)(i) and 5.01(b)(ii) of this Agreement, the net proceeds contemplated by the Financing Letters (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to the maximum amount of flex (including original issue discount flex) provided under the Debt Commitment Letter), will in the form so delivered aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the Company on aggregate Offer Price and Merger Consideration (and any repayment or refinancing of debt contemplated by this Agreement, the date hereof, are Equity Funding Letter or the Debt Commitment Letter) and any other amounts required to be paid in full force and effect as connection with the consummation of the date hereofTransactions (including all amounts payable in respect of Company Stock Options, Company Restricted Shares, Company RSUs, Company DSUs and PSU Awards under this Agreement) and to pay all related fees and expenses payable by them in connection with the Transactions (such amount, the “Required Amount”). The Financing Letters are (ix) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and thereto, (iiy) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium the Bankruptcy and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters Equity Exception and the Fee Letter contain all (z) as of the conditions precedent to the obligations date of the parties thereunder to make the Financing available to Parent on the terms therein this Agreement, in full force and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financingeffect. As of the date of this Agreement, 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 or Merger SubSub or, as applicable, or to the Knowledge of Parent, any other parties thereto, thereto under the Financing Letters Equity Funding Letter or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectDebt Commitment Letter. As of the date hereofof this Agreement, and subject to the assuming satisfaction or waiver of the conditions set forth in Article VI to Parent’s and Merger Sub’s obligations to consummate the Offer and the performance by the Company of its obligations under this AgreementMerger, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated precedent set forth in the Financing Letters will not be satisfied or that the Financing Required Amount will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent 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 The only conditions precedent (including the market “flex” provisions) related to the date hereof pursuant to the terms obligations of the Guarantors to fund the full amount of the Equity Financing Letters. Other than and the Fee Letter and as lenders to fund the full amount of the Debt Financing are those expressly set forth in Schedule 3.10(c)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 (except for the portions of the Redacted Fee Letter permitted to be redacted hereunder) 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 as expressly set forth contained in the Financing Letters.
(d) As of Letters delivered to the Company prior to the date hereof, none of Parent, Merger Sub or this Agreement that would (A) impair the enforceability of any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
, (eB) As reduce the aggregate amount of any portion of the date hereof, neither Parent nor Merger Sub has Financing (i) retained any financial advisor on a basis exclusive including by increasing the amount of fees to Parent be paid or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating original issue discount as compared to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) fees and (ii), in connection with the Merger or the other transactions original issue discount contemplated by the Financing Letters on the date of this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, ) such that the aggregate amount of the Financing would be a breach ofbelow the amount required to pay the Required Amount, (C) impose new or would cause additional conditions precedent to be untruethe Financing, (D) otherwise adversely modify any of the representations in this Section 3.10(e)conditions precedent to the Financing or (E) reasonably be expected to prevent, impair or materially delay the consummation of the Financing.
Appears in 2 contracts
Sources: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant At the Closing, subject to the terms and conditions of the Financing Letters (as defined below)Commitments and subject to the satisfaction of the conditions contained in Sections 6.1 and 6.3, together assuming the accuracy of the Seller’s representations and warranties set forth in Article III and assuming compliance by the Seller with the cash covenants set forth herein, the Buyer will have on hand of Parent and its Subsidiaries, is sufficient, if funded, the Closing Date sufficient available funds to (i) pay the aggregate Per Share Price consideration specified in Section 2.5 and any to make all other repayment or refinancing of Indebtedness contemplated necessary payments by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation it in connection with the Merger transactions contemplated by this Agreement. Concurrently with the execution and delivery of this Agreement, the Financing; Buyer has received and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of accepted (i) the an executed equity commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereofof this Agreement, among Parentfrom RoundTable Healthcare Partners IV, Merger Sub L.P. and the other parties thereto RoundTable Healthcare Investors IV, L.P. (collectively, the “Equity Financing SourcesRoundTable”), pursuant to which the Equity Financing Sources have committedRoundTable has agreed, subject to the terms and conditions thereof, to invest the cash amounts provide equity financing in an aggregate amount set forth therein (as amended, restated, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.21, the “Equity FinancingFinancing Commitment”) and ), (ii) the an executed commitment letter, dated as of the date hereofof this Agreement (as amended, restated, modified, supplemented, replaced or extended from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank time to time after the date of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together this Agreement in compliance with the Equity Financing LetterSection 5.21, the “Senior Debt Financing LettersCommitments”), from Capital One, National Association and CIBC Bank USA (collectively with any other additional lead arrangers, bookrunners, managers, arrangers, agents, co-agents or lenders who become party to the Senior Debt Financing Commitments, the “Senior Lenders”), pursuant to which the lenders party thereto Senior Lenders have committedagreed, subject to the terms and conditions thereof, to lend provide the debt amounts set forth therein and (the “Debt Financing” (which term shall includeiii) an executed commitment letter, if applicable, high-yield bonds issued in lieu of certain dated as of the debt facilities date of this Agreement (as contemplated under amended, restated, modified, supplemented, replaced or extended from time to time after the Debt Commitment Letter) anddate of this Agreement in compliance with Section 5.21, together with the Equity FinancingSenior Debt Financing Commitments, the “FinancingDebt Financing Commitments” and together with the Equity Financing Commitment, the “Financing Commitments”), from RoundTable Healthcare Capital Partners III, L.P. (the “Subordinated Lender”), pursuant to which the Subordinated Lender have agreed, subject to the terms and conditions thereof, to provide the debt amounts set forth therein. Parent The Buyer has also delivered to the Company a Seller true, complete and correct copy copies of the executed Financing Commitments and copies of the fee letters related to the Senior Debt Financing Commitments (with only fee amounts, pricing caps, market flex and other economic terms redacted). As used in this Agreement, “Debt Financing Source” means any fee letter entity that has committed to provide or otherwise entered into agreements with the Buyer in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letterFinancing, a “Fee Letter”)
(c) As of the date hereof, the Alternative Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub financings in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused , including the parties to the Debt Financing Commitments and any joinder agreements or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)credit agreements related thereto.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct true and complete copy of (i) the an executed commitment letter dated September 15, 2006, and the provisions related to “market flex” in the executed fee letter dated September 15, 2006, in each case from Credit Suisse, Credit Suisse Securities (USA) LLC and Citigroup Global Markets Inc. (as the “Equity Financing Letter”same may be amended and replaced in accordance with Section 6.9(b), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing SourcesDebt Commitment Letters”), pursuant to which the Equity Financing Sources lender parties thereto have committed, subject to the terms and conditions thereof, to lend the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”). Parent and Merger Sub have delivered to the Company true and complete copies of executed commitment letters (collectively, the “Equity Commitment Letters” and together with the Debt Commitment Letters, the “Financing Commitments”) from Blackstone Capital Partners V L.P., TPG Partners V, L.P., Carlyle Partners IV, L.P. and Permira IV L.P.2, Permira Investments Limited, P4 Co-Investment l.p. (the “Investors”) pursuant to which the Investors have committed, subject to the terms therein, to invest the cash amounts set forth therein (the “Equity Financing”) ” and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereof, (i) none of the Financing Letters have not Commitments has been amended or modified modified, and none of (ii) the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn or rescinded in any respect. The Financing Each of the Debt Commitment Letters, in the form so delivered to the Company on the date hereofdelivered, are is in full force and effect as of the date hereof. The Financing Letters are (i) and is a legal, valid and binding obligations obligation of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto for so long as it remains in full force and (ii) enforceable effect. Each of the Equity Commitment Letters, in accordance with their respective terms against the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Financing Commitments. Subject to the terms and conditions of the Financing Commitments, and subject to the terms and conditions of this Agreement, the aggregate proceeds contemplated by the Financing Commitments, together with the available cash of the Company, will be sufficient for Parent and Merger Sub to consummate the Merger upon the terms contemplated by this Agreement and to pay all related fees and expenses associated therewith, including payment of all amounts under Article III of this Agreement. As of the date of this Agreement, 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 or Merger Sub, as applicable, Sub under any term or to the Knowledge condition of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectCommitments. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, 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 term or condition to the Financing contemplated be satisfied by it contained in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing DateCommitments. Parent and Merger Sub have has fully paid, or caused to be fully paid, paid any and all commitment or other fees which that have been incurred and are due and payable on or prior to the date hereof pursuant to the terms of in connection with the Financing Letters. Other than Commitments, and Parent will pay when due all other commitment fees arising under the Fee Letter Commitment Letters as and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letterswhen they become payable.
(dc) As of the date hereof, none of Parent, Parent and Merger Sub or any of their respective Affiliates is a party to any have no Contracts, arrangements or any commitment to enter into any Contracts, understandings with any Person (including any Company Stockholder, director, officer or employee of concerning the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, to Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As Commitments and those that would not adversely affect Parent’s rights and obligations under this Agreement, nor any Contracts or non-binding arrangements or understandings with any Person concerning the ownership and operation of the date hereofParent, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub the Surviving Corporation other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing those that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) would not adversely affect Parent’s rights and (ii), in connection with the Merger or the other transactions contemplated by obligations under this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Freescale Semiconductor Inc), Merger Agreement (Freescale Semiconductor Inc)
Financing. (ai) The aggregate amount Parent will have sufficient funds available to it for Parent and, after the Effective Time, the Surviving Corporation, to complete the Merger and refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture, to pay cash in lieu of funds contemplated to be provided pursuant to the Financing Letters (as defined belowfractional shares in accordance with Section 4.2(f), together with and to satisfy the cash on hand respective obligations of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price Merger Sub as and any other repayment or refinancing of Indebtedness when contemplated by the Financing Letters; (ii) this Agreement and to pay any or otherwise perform such obligations of Parent and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation under any agreement or documents entered into in connection with the Merger (including any fees and expenses relating to the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder).
(bii) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the a fully executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed debt commitment letter, dated as of the date hereofof this Agreement (including all schedules, from Credit Suisse Securities (USAannexes and exhibits thereto) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter”) and (ii) the fully executed fee letters referenced therein, relating to fees with respect to the Financing contemplated by the Commitment Letter (collectively, the “Fee Letter,” and, and together with the Equity Financing Commitment Letter, collectively, the “Financing LettersCommitment Papers”), pursuant to which by and among Parent and the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth Financing Sources specified therein (with only fee amounts and other economic terms, and the “Debt Financingflex” (provisions, redacted, none of which term shall includeredacted provisions would adversely affect the conditionality, if applicableenforceability, high-yield bonds termination or amount of the debt financing contemplated by the Commitment Letter). As used herein, the debt financing contemplated in the Commitment Papers, together with, unless the context otherwise requires, any replacement financing, including any bank financing or debt securities issued in lieu of certain of the debt facilities thereof, is collectively referred to as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) .” As of the date hereofof this Agreement, the Financing Letters have not been amended or modified and none each of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are Commitment Papers is in full force and effect as of the date hereof. The Financing Letters are (i) legaland has not been withdrawn, valid and binding obligations of Parent and Merger Subrescinded or terminated, as applicable, or otherwise amended or modified in any respect and, to the Knowledge of Parent, no amendment or modification in any manner that is potentially adverse to the Company is contemplated as of the date of this Agreement (other than as set forth in the Fee Letter with respect to flex rights and/or to add additional lenders, arrangers, bookrunners, syndication agents and similar entities who had not executed the Commitment Papers as of the date of this Agreement), and each of the other parties thereto Commitment Papers, in the form so delivered, constitutes the legal, valid and (ii) binding obligation of, and is enforceable in accordance with their respective terms against against, Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, subject, in each case case, to the Bankruptcy and Equity Exception. Except as set forth in the Commitment Papers and except for any engagement letters, fee credit letters and fee letters related to the permanent financing described in the Commitment Papers, as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent to the obligations date of the parties thereunder to make the Financing available to Parent on the terms therein and this Agreement, there are no other conditions precedent contracts, agreements, “side letters” or other contingencies related arrangements to which Parent, Merger Sub or any of their respective affiliates is a party relating to the funding of the full amount of Commitment Papers or the Financing. .
(iii) As of the date of this Agreement, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would constitutes, or would reasonably be expected to constitute constitute, a default or breach on the part of by Parent or Merger Subor, as applicable, or to the Knowledge of Parent, any other parties party thereto, under the Financing Letters or that makes of any term of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectCommitment Papers. As of the date hereofof this Agreement, no Financing Source party to the Commitment Letter has notified Parent in writing of its termination or repudiation (or intent to terminate or repudiate) any of the commitments under such Commitment Letter or intent not to provide all or any portion of the Financing. Assuming the truth and accuracy of the Company’s representations and warranties set forth in Section 5.1 and compliance by the Company with its obligations hereunder, in each case, in all material respects, and assuming satisfaction of the conditions in Section 7.3 (other than those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreementor waiver thereof), neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent availability and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related to the funding or investingfunding, as applicable, of the Financing contemplated by the Commitment Papers will fail to be satisfied on the Closing Date or that the full amount amounts committed pursuant to the Commitment Letter will not be available to be funded on the Closing Date to the extent required to refinance in full all amounts outstanding under the Company ABL Credit Agreement and the Senior Secured Indenture, to pay cash in lieu of fractional shares in accordance with Section 4.2(f) and to pay the Financing other than fees and expenses relating to the Merger and the Financing.
(iv) Notwithstanding anything to the contrary in this Agreement, each of Parent and Merger Sub acknowledges that its obligation to consummate the Merger as expressly set forth in this Agreement is not contingent on Parent’s ability to obtain any financing, whether pursuant to the Financing LettersCommitment Papers or otherwise.
(dv) As of the date hereof, none of Parent, Parent and Merger Sub have fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Papers to be paid on or before the date of their respective Affiliates is a this Agreement. The only conditions precedent related to the obligations of the Financing Sources party to any Contracts, or any commitment the Commitment Letter to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee fund the full amount of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions Financing contemplated by this Agreement other than as the Commitment Letter are expressly set forth in the Financing LettersCommitment Letter.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Cleveland-Cliffs Inc.), Merger Agreement (Cleveland-Cliffs Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee fully executed debt commitment letter, together with any related fee letters (in the case of the fee letters, redacted in a customary manner), dated as of the date of this Agreement, by and between Citigroup Global Markets Inc. and Parent providing for debt financing as described therein (together, including all exhibits, schedules and annexes, the “Fee Commitment Letter”), pursuant to which, upon the terms and subject to the conditions set forth therein, Citigroup Global Markets Inc. has agreed to lend the amounts set forth therein, for the purpose of, among other things, paying the Merger Amounts.
(cb) As of the date hereofof this Agreement, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are Commitment Letter is in full force and effect as of and constitutes the date hereof. The Financing Letters are (i) legalvalid, valid binding and binding obligations enforceable obligation of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) 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, enforceable in accordance with its terms, in each case except as such enforceability may be limited by applicable bankruptcycase, insolvency, reorganization, moratorium and other similar laws affecting or relating subject to creditors’ rights generallythe Enforceability Exceptions. The Financing Letters and the Fee Letter contain all of the There are no 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 precedent or other contingencies related to the funding of the full amount of the Financing. Financing contemplated by the Commitment Letter, other than the conditions precedent set forth the Commitment Letter (such conditions precedent, the “Financing Conditions”).
(c) As of the date of this Agreement, no event the Commitment Letter has occurred not been amended or circumstance exists whichmodified in any manner, with and the respective commitments contained therein have not been terminated, reduced, withdrawn or without noticerescinded in any respect by Parent or, 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, as applicable, or to the Knowledge knowledge of Parent, any other parties party thereto, under and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the Financing Letters or that makes knowledge of Parent, any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. other party thereto, other than mandatory reductions expressly contemplated thereby.
(d) As of the date hereofof this Agreement, assuming the accuracy of the representations and subject warranties of the Company made to Parent such that the satisfaction of condition set forth in Section 6.2(a) is satisfied, assuming the conditions set forth in Article VI Section 6.1 are satisfied, and assuming the performance by the Company of Company’s compliance with its obligations under this AgreementAgreement such that the condition set forth in Section 6.2(b) is satisfied, neither Parent nor Merger Sub has any no reason to believe that (i) any of the conditions to the Financing contemplated in the Financing Letters Conditions will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letter will not be available to Parent on the Closing Date. Parent 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 .
(e) As of the date hereof pursuant to of this Agreement, Parent is not in default or breach under the terms and conditions of the Financing Letters. Other than Commitment Letter.
(f) As of the Fee Letter and as set forth in Schedule 3.10(c)date of this Agreement, there are no side letters letters, understandings or other Contracts agreements or arrangements relating to funding of the full amount of the Financing to which Parent or any of its Affiliates is a party related that would be reasonably likely to the funding or investing, as applicable, of the full amount of affect the Financing contemplated by the Commitment Letter in any respect, other than as expressly those set forth in the Financing LettersCommitment Letter.
(dg) As Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Letter to be paid on or prior to the date of this Agreement.
(h) In each case, regardless of whether the Adjusted Per Share Price or the Baseline Per Share Price is the Per Share Price and regardless of any actions taken or committed to be taken by Parent or its Subsidiaries pursuant to Section 5.7, Parent will have at and as of the date hereof, none of Parent, Closing Date sufficient available funds to consummate the Merger Sub or any of their respective Affiliates is a party and to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments make all payments required to be made inin connection therewith, or contributions including payment of the Merger Consideration, any payments made in respect of equity compensation obligations to be made topaid in connection with the transactions contemplated hereby, Parent the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or Merger Sub otherwise satisfied or discharged in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As including all Indebtedness of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or and its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal)required to be repaid, in the case of clauses (i) and (ii)redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger or and the other transactions contemplated by hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger (such amounts, collectively, the “Merger Amounts”). As of the date of this Agreement, Parent has no reason to believe that the representation contained in the immediately preceding sentence will not be true at and as of the Closing Date. Neither In no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letter) by or to Parent nor Merger Sub has caused or induced any Person of its Affiliates or any other financing transaction be a condition to take any action that, if taken by of the obligations of Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Sub hereunder.
Appears in 2 contracts
Sources: Merger Agreement (Valspar Corp), Merger Agreement (Sherwin Williams Co)
Financing. (a) The aggregate amount Parent has delivered to Company a true, correct and complete copy of funds a duly executed debt commitment letter, dated as of October 24, 2025, and Redacted Fee Letter (together with the term sheet and any other annexes, exhibits, schedules or other attachments thereto, collectively, the “Debt Commitment Letter”), by and among Parent, REIT Merger Sub, OP Merger Sub and the Debt Financing Sources party thereto, pursuant to which the Debt Financing Sources have agreed, subject to the terms and conditions therein, to provide debt financing in the amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and the related fees and expenses to be provided incurred by P▇▇▇▇▇, REIT Merger Sub and OP Merger Sub in connection therewith. The debt financing committed pursuant to the Debt Commitment Letter is collectively referred to in this Agreement as the “Debt Financing.”
(b) Parent has delivered to Company a true, correct and complete copies of the following (the “Equity Commitment Letters” and, together with the Debt Commitment Letter, the “Commitment Letters”): (x) the duly executed equity commitment letter, dated as of the date of this Agreement, by and between those certain entities set forth on Schedule C-1 hereto (collectively, “Makarora”) and Parent and (y) the duly executed equity commitment letter, dated as of the date of this Agreement, by and between those certain investment funds set forth on Schedule C-2 hereto (collectively, “Ares” and, together with Makarora, the “Equity Investors”) and Parent, pursuant to which, on the terms and subject to the conditions set forth therein, the Equity Investors have agreed to invest, severally and not jointly, in Parent the amount set forth in the respective Equity Commitment Letter for the purpose of funding a portion of the transactions contemplated by this Agreement. The equity financing committed pursuant to the Equity Commitment Letters is referred to in this Agreement as the “Equity Financing.” The Equity Financing Letters and the Debt Financing are collectively referred to as the “Financing.” Each Equity Commitment Letter provides that Company and Operating Partnership are express third party beneficiaries of such Equity Commitment Letter.
(c) As of the date hereof, except as expressly set forth in the unredacted portions of the Commitment Letters, there are no conditions precedent to the obligations of the Debt Financing Sources or the Equity Investors to provide the Financing or any written agreement setting forth contingencies that would permit the Debt Financing Sources or the Equity Investors to reduce the aggregate principal amount of the Financing below the amount required to pay the Financing Amounts (as defined below)) on the Closing Date. Assuming the satisfaction of the conditions set forth in Article 7, together with as of the cash date hereof, Parent does not have any reason to believe that any of the conditions in the Commitment Letters will fail to be satisfied on hand of Parent and its Subsidiaries, is sufficient, if fundeda timely basis on or prior to the Closing Date (in each case, to (ithe extent the satisfaction thereof is within the control of Parent) pay or that the aggregate Per Share Price full amount of the Financing will not be available to be funded on the Closing Date. As of the date hereof, there are no side letters, understandings or other agreements, contracts or arrangements of any kind to which Parent or any of its Affiliates are a party relating to the Commitment Letters or the Financing other than as expressly contained in the Commitment Letters and any other repayment delivered to Company prior to the date of this Agreement that could adversely affect the availability, conditionality, enforceability or refinancing amount of Indebtedness the Financing contemplated by the Financing Commitment Letters; .
(iid) pay Assuming the satisfaction of the conditions set forth in Article 7, the aggregate amounts committed pursuant to the Financing, when funded in accordance with the Commitment Letters on the Closing Date and giving effect to any “flex” provision in or related to the Debt Commitment Letter (including with respect to fees and original issue discount), shall provide Parent with available funds on the Closing Date sufficient for the satisfaction of (x) all of Parent’s, REIT Merger Sub’s and OP Merger Sub’s payment obligations under this Agreement and the Commitment Letters that are required to be paid on the Closing Date, including the payment of the REIT Merger Consideration, the Partnership Merger Consideration, the aggregate Series C Preferred Unit Per Share Redemption Consideration and the Stock Award Payments, (y) any fees and expenses required to be paid by Parent, REIT Merger Sub and Sub, OP Merger Sub, REIT Surviving Entity or Partnership Surviving Entity on the Surviving Corporation Closing Date in connection with the Merger and the Financing; transactions contemplated by this Agreement, and (iiiz) satisfy all any repayment or refinancing of any outstanding Indebtedness of Company or the other payment obligations Company Subsidiaries contemplated by, required in connection with, or as a result of, the transactions described in, this Agreement or the Commitment Letters (such amounts described the foregoing clauses (x), (y) and (z), collectively, the “Financing Amounts”).
(e) To the Knowledge of Parent, Merger Sub the Commitment Letters constitute the legal, valid, binding and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy enforceable obligations of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and or other similar laws Laws affecting or relating to creditors’ rights generallygenerally and by general principles of equity (regardless of whether enforceability is considered in a proceeding in equity or at law). The Financing Letters and Assuming the Fee Letter contain all satisfaction 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 precedent or other contingencies related to the funding of the full amount of the Financing. As set forth in Article 7, as of the date of this Agreementhereof, no event has occurred or circumstance exists which, which (with or without notice, lapse of time or both) constitutes, would or would reasonably be expected to constitute constitute, a default or breach on the part of Parent or by Parent, REIT Merger Sub, as applicableOP Merger Sub or, or to the Knowledge of Parent, any other parties thereto, thereto under the Financing Letters or that makes any terms and conditions of the assumptions Commitment Letters. Parent has paid (or statements set forth caused to be paid) in full any and all commitment fees or other fees required to be paid pursuant to the Financing terms of the Commitment Letters inaccurate on or before the date of this Agreement, and, subject to the occurrence of the Closing, will pay in full any material respectsuch amounts due on or before the Closing Date as and when due. As of the date hereof, the Commitment Letters have not been modified or amended, except as permitted by Section 6.14(b) (with any such modification or amendment promptly notified in writing to Company) and subject to the satisfaction none of the conditions set forth in Article VI and the performance by the Company of its obligations respective commitments under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions Commitment Letters have been terminated, reduced, withdrawn or rescinded in any respect, and no termination, reduction, withdrawal, modification, amendment or rescission thereof is contemplated; provided that Parent may replace, amend, supplement or modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (or titles with respect to such entities) that have not executed the Debt Commitment Letter as of the date of this Agreement (it being understood that the aggregate commitments of the lenders party to the Financing contemplated Debt Commitment Letter prior to such replacement, amendment, supplement or modification may be reduced in the Financing Letters will not be satisfied or amount of such additional party’s commitments).
(f) Parent acknowledges that receipt of the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms proceeds of the Financing Letters. Other than is not a condition to consummate the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersMergers.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Plymouth Industrial REIT, Inc.), Merger Agreement (Plymouth Industrial REIT, Inc.)
Financing. Parent has delivered to the Company true and complete fully executed copies of (aA) The aggregate amount the commitment letter, dated as of funds contemplated to be provided July 23, 2012, between Parent and Bank of America, N.A. and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Debt Financing Commitment”), pursuant to which and subject to the terms and conditions thereof each of the parties thereto (other than Parent) has agreed to lend the amounts set forth therein (the provision of such funds as set forth therein on the terms and conditions set forth therein, the “Debt Financing”) and (B) the investment agreement, dated as of July 23, 2012, between Parent and Carlyle Partners V, L.P. (the “Equity Financing Letters (as defined below)Commitment”; and, together with the cash Debt Financing Commitment, the “Financing Commitments”), pursuant to which and subject to the terms and conditions thereof the party thereto (other than Parent) has agreed to invest the amounts set forth therein in the form of equity securities to be issued by Parent (the provision of such funds as set forth therein on hand the terms and conditions set forth therein, the “Equity Financing”; and, together with the Debt Financing, the “Financing”) for the purposes of permitting Parent and its Subsidiaries, is sufficient, if funded, Merger Sub to consummate the Merger and the transactions contemplated hereby on a timely basis and to (i) pay effect, as required, the aggregate Per Share Price and any other repayment or refinancing of any outstanding Indebtedness contemplated by that may become due and payable as a result of the Financing Letters; Merger, (ii) pay any and all fees and expenses required to be paid by Parent, Parent and Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; Financing and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”)hereunder. Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing LettersCommitments, in the form so delivered to the Company on the date hereofdelivered, are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto Sub and (ii) 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. None of the Financing Commitments has been amended, in each case except as such enforceability may be limited by applicable bankruptcysupplemented or otherwise modified prior to the date of this Agreement, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all respective commitments contained in the Financing Commitments have not, prior to the date of this Agreement, been withdrawn or rescinded in any respect. As of the conditions precedent to date of this Agreement, except for the obligations payment of the parties thereunder to make the Financing available to Parent on the terms therein and customary fees, there are no other conditions precedent or other contingencies related to the funding of the full amount amounts of the Financing, other than as set forth in or contemplated by the Financing Commitments. Parent and Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid by them on or prior to the date of this Agreement. As of the date of this Agreement, 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 or Merger Sub, as applicable, or and to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectCommitments. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in by the Financing Letters Commitments will not be satisfied or that any portion of the Financing to be made thereunder will not otherwise be made available to Parent and or Merger Sub at or prior to on the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to will provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries any amendments to the Financing Commitments, as promptly as possible (including but in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any event within 48 hours of the representations in this Section 3.10(eeffectiveness of such amendment).
Appears in 2 contracts
Sources: Merger Agreement (Railamerica Inc /De), Merger Agreement (Genesee & Wyoming Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies, as of the date of this Agreement, of (i) the an executed commitment letter (the “Equity Financing Funding Letter”), dated as of the date hereof, among Parent, Merger Sub and the other ) from certain parties thereto (collectively, the “Equity Financing SourcesProviders”), pursuant ) to which the Equity Financing Sources have committedprovide, subject to the terms thereofand conditions therein, to invest equity financing in the cash amounts aggregate amount set forth therein (being collectively referred to as the “Equity Financing”) ), and (ii) the an executed commitment letter and a redacted form of fee letter, dated as of the date hereofof this Agreement, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. the financial institutions identified therein (the “Debt Commitment Letter” and, together with the Equity Financing Funding Letter, the “Financing Letters”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend the amounts debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing” (which term shall include”, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, Financing collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, neither the Financing Letters have not Equity Funding Letter nor Debt Commitment Letter has been amended or modified and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Financing Letters, Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the form so delivered Equity Funding Letter and the Debt Commitment Letter that are payable on or prior to the Company on the date hereof, are in full force and effect as of the date hereof. The Assuming the Financing is funded in accordance with the terms and conditions of the Financing Letters are (i) legaland assuming the accuracy of the representations and warranties set forth in Article III and performance by the Company of its obligations under Section 5.1, valid the net proceeds contemplated by the Equity Funding Letter and binding obligations Debt Commitment Letter will, together with the cash or cash equivalents available to the Company, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to consummate the Transactions upon the terms and conditions contemplated by this Agreement. 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 Letter or the Debt Commitment Letter; provided that Parent and Merger SubSub are not making any representation regarding the effect of the inaccuracy of the representations and warranties in Article III. As of the date of this Agreement, as applicableassuming the accuracy of the representations and warranties set forth in Article III and performance by the Company of its obligations under Section 5.1, and, Parent does not have any reason to believe that any of the conditions to the Knowledge of Parent, each Financing will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyClosing. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letterstherein.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 2 contracts
Sources: Merger Agreement (Aeroways, LLC), Merger Agreement (Cke Restaurants Inc)
Financing. (a) Purchaser has, as of the Execution Date, sufficient cash on hand to enable Purchaser to fund the Performance Deposit on the Execution Date. The aggregate amount proceeds of funds the Debt Financing contemplated to be provided pursuant to by the Financing Letters (as defined below)Debt Commitment Letter, together with the cash on hand of Parent and its SubsidiariesOther Sources, is sufficientwill be, if fundedfunded at Closing, to sufficient for the satisfaction of all of Purchaser’s obligations under this Agreement including (iA) pay paying the aggregate Per Share Price Closing Payment at Closing and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (iiB) pay any and paying all fees and expenses required of Purchaser and its Affiliates (and to be paid the extent Purchaser is responsible therefor under this Agreement, any other Person) related to the transactions contemplated by Parentthis Agreement, Merger Sub and including the Surviving Corporation in connection with Debt Financing (collectively, the Merger and the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder“Funding Requirements”).
(b) Parent As of the Execution Date, Purchaser has received and Merger Sub have delivered to the Company a true, correct and complete copy of Seller (ix) the an executed senior 364-day unsecured bridge term loan facility commitment letter and (the “Equity Financing Letter”)y) an executed amendment backstop commitment letter in connection with Purchaser’s existing reserve-based credit facility, each dated as of the date hereofhereof (including all exhibits, among Parentschedules and annexes thereto and each fee letter executed in connection therewith, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), ) pursuant to which the lenders Debt Financing Sources party thereto have committed, subject to the terms thereofand conditions set forth therein, to lend provide to Purchaser the amounts amount of debt financing set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of ”) solely for the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”)Funding Requirements. Parent Purchaser has also delivered to the Company a true, complete fully paid any and correct copy of any fee letter in connection with all commitment fees or other fees required by the Debt Commitment Letter (it being understood that any such fee letter provided to be paid on or before the date hereof. The Debt Commitment Letter is a legal, valid and binding obligation of Purchaser, and to the Company may knowledge of Purchaser, each other party thereto, and is in full force and effect, enforceable against Purchaser and, to the knowledge of Purchaser, the other parties thereto, and has not been amended, modified, withdrawn, terminated or rescinded in any respect, and does not contain any material misrepresentation by Purchaser and no event has occurred which (with or without notice, lapse of time or both) would reasonably be redacted expected to omit constitute a breach thereunder on the numerical amounts provided therein) (any such fee letterpart of Purchaser, a “Fee Letter”)
(c) As or to the knowledge of the Purchaser and as of the date hereof, any other party thereto. No amendment or modification to, or withdrawal, termination or rescission of, the Debt Commitment Letter is currently contemplated by Purchaser or any of its Affiliates or, to the knowledge of Purchaser, any Debt Financing Letters have not been amended or modified Source, and none of the respective obligations and commitments contained in the Financing Letters Debt Commitment Letter have not been withdrawn or rescinded in any respect. The Financing LettersPurchaser has not incurred any obligation, commitment, restriction or liability of any kind, and is not contemplating or aware of any obligation, commitment, restriction or liability of any kind, in either case which would reasonably be expected to impair or adversely affect such resources. Except for each fee letter referred to in the form so delivered Debt Commitment Letter (collectively, the “Fee Letter”) (a true and complete copy of which Fee Letter has been provided to Sellers); provided, that provisions contained in the Fee Letter relating to fees and economic terms (including economic “flex” terms) may be redacted in customary fashion (it being understood that Purchaser hereby acknowledges and agrees that none of which redacted provisions would adversely affect the availability of, impose additional or new conditions, or expand or modify any existing conditions, or impair the validity of, or prevent or materially delay the consummation of the Debt Financing at the Closing), there are no side letters or other agreements to which Purchaser is party related to the Company funding of the Debt Financing other than as expressly set forth in the Debt Commitment Letter that would impose any new conditions or expand the existing conditions to the Debt Financing Sources’ provision of the Debt Financing at the Closing or that would otherwise materially and adversely affect or delay the availability of the full amount of Debt Financing at the Closing. Neither the Fee Letter nor any other agreement between the Debt Financing Sources, on the one hand, and Purchaser or any of its Affiliates, on the other hand, contains any conditions precedent (other than the “Limited Conditionality Provisions” expressly set forth and defined in the Debt Commitment Letter as in effect on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are ) or other contingencies (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of Debt Financing or any provisions that could reduce the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance proceeds contemplated by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason Debt Commitment Letter below the amount necessary for Purchaser to believe that any of consummate the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in on the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented Closing Date or (ii) entered into an exclusivitythat could otherwise adversely affect the conditionality, lock-up enforceability or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any availability of the representations in this Section 3.10(e)Debt Commitment Letter with respect to all or any portion of the Debt Financing.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to Purchaser has obtained (i) pay a fully executed commitment letter (including all exhibits, annexes and other attachments thereto and a redacted copy of each fee letter referenced therein), a copy of which has been delivered to the aggregate Per Share Price and Company (the “Debt Commitment Letter”), from the parties identified therein (together with any other repayment Persons that have committed to provide or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation have otherwise entered into agreements in connection with the Merger Debt Commitment Letter, including any amendment or joinder, and their respective successors and assigns, collectively, the “Debt Financing Sources”, who shall not include the Purchaser or its Affiliates, to provide the Purchaser with debt financing in the amount set forth therein for the purpose of financing the transactions contemplated by this Agreement (being collectively referred to as (the “Debt Financing; ”)) and (iiiii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the fully executed equity commitment letter in form attached as Exhibit G hereto (the “Equity Financing Commitment Letter,” and together with the Debt Commitment Letter, the “Commitment Letters”), from the Guarantors, dated as of the date hereof, among Parent, Merger Sub and hereof (the other parties thereto (collectivelyequity financing committed pursuant to the Equity Commitment Letter, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) ,” and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “FinancingFinancings”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, the Commitment Letters have not been amended or modified, the respective commitments have not been withdrawn or rescinded in any way, and no such amendment or modification is contemplated by the Purchaser (in each case, except as expressly described in the fee letter relating to the Debt Financing delivered hereunder and to add additional lenders, lead arrangers, bookrunners, agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof). The Purchaser has fully paid any and all commitment fees or other fees due as of the date of this Agreement in connection with the Commitment Letters. As of the date of this Agreement, the Commitment Letters, in the form so delivered, are the valid and binding obligations of the Purchaser and, to the Knowledge of the Purchaser, the other parties thereto, except as enforceability may be limited by bankruptcy Laws, other similar Laws affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies. Except for the fee letter relating to the Debt Financing (a true and complete copy of which has been provided to the Company, redacted as to fee amounts, discount amounts, pricing caps and other economic terms only, but not redacted as to any such provisions that could affect the minimum amount, conditionality or availability of the Debt Financing), as of the date of this Agreement, there are no other agreements, side letters, or arrangements relating to the Financings that would reasonably be expected to affect the minimum amount, conditionality or availability of the Financings on the Closing Date. As of the date hereof, 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 failure of any condition to the funding of the Financings on the part of Parent Closing Date or Merger Sub, as applicable, or to the Knowledge of Parent, result in any other parties thereto, under the Financing Letters or that makes any portion of the assumptions or statements set forth in Financings being unavailable on the Financing Letters inaccurate in any material respect. As of the date hereofClosing Date and, and subject to assuming the satisfaction of the conditions set forth in Section 3.01, the accuracy of the representations and warranties set forth in Article VI IV and Article V, the performance by aggregate proceeds from the Company Financing (both before and after giving full effect to the exercise of its obligations under “flex” provisions), together with immediately available cash on hand and other sources of cash available to the Purchaser, will provide the Purchaser with all of the financing required to pay the amounts required to be paid at the Closing pursuant to this Agreement, neither Parent nor Merger Sub has to pay all related fees and expenses, and to pay any reason other amounts required to believe that any be paid at the Closing in connection with the consummation of the conditions to transactions contemplated under this Agreement and the Financing contemplated Commitment Letters, in each case for which the Purchaser is responsible. Except as expressly provided in the Financing Commitment Letters will not be satisfied or that in the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms unredacted portion of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(cfee letter delivered hereunder), there are no side letters conditions precedent, or other Contracts to which Parent or any of its Affiliates is a party contractual contingencies, in each case, that are related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in Financings contemplated by the Financing Commitment Letters.
(d) . As of the date hereofof this Agreement, none of Parent, Merger Sub there are no facts or any of their respective Affiliates is a party circumstances known to any Contracts, or any commitment the Purchaser that would reasonably be expected to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee affect the availability of the Company full amount of the Financings on the Closing Date or its Subsidiaries) concerning any investments impose additional conditions to be made inthe funding of Financings, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth described in the Financing Letters.
Commitment Letters (e) As or in the unredacted portion of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(efee letter delivered hereunder).
Appears in 1 contract
Sources: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. (a) The aggregate Assuming the accuracy of the representations and warranties set forth in Article II (without giving effect to any materiality, Company Material Adverse Effect or knowledge qualifiers) to the extent that the accuracy of such representations and warranties (as so unqualified) is necessary for the representations and warranties in this Section 3.11(a) to be true and correct, the amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the Company cash on hand of Parent and its Subsidiariescash equivalents, is are sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by this Agreement, the Financing LettersLetters or any Company Indebtedness; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct complete and complete accurate copy of (i) the executed commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto Guarantor (collectively, the “Equity Financing SourcesLetter”), pursuant to which the Equity Financing Sources have Guarantor has committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇between Intermediate Holdco and ▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingFargo Capital Finance, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. LLC (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(c) As of the date hereof, the The Financing Letters have not been amended or modified and prior to the date hereof and, as of the date hereof, none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The As of the date hereof, the Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as effect. As of the date hereof. The , the Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto, in each case except as that such enforceability (x) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters generally and the Fee Letter contain all of the conditions precedent (y) is subject to the obligations rules governing the availability of the parties thereunder to make the Financing available to Parent on the terms therein specific performance, injunctive relief or other equitable remedies and there general principles of equity, regardless of whether considered in a proceeding in equity or at law. There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in the Financing Letters. As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article II, (I) 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 or Merger Sub, as applicable, or to the Knowledge knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, (II) neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing DateEffective Time. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the fully executed commitment letter (the “Equity Financing and a Redacted Fee Letter”), each dated as of the date hereofDecember 6, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof2011, from Credit Suisse Securities (USA) LLC, Jefferies Finance LLC and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇& Company, Inc.Inc. (the “Commitment Parties,” together with each of their Affiliates, successors and assigns, and The Bank each of Tokyo-Mitsubishi-UFJtheir officers, Ltd. employees, directors, partners, former, current or future equityholders, controlling parties, members, managers, general or limited partners, advisors, agents and representatives, the “Financing Sources”) (the “Debt Commitment Letter” and, together Letters”) confirming their respective commitments to provide Parent with debt financing in connection with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein transactions contemplated hereby (the “Debt Financing”) and (ii) fully executed commitment letters (the “Equity Commitment Letters,” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under and together with the Debt Commitment LetterLetters, the “Financing Commitment Letters”) and, from each of the parties listed on Annex II hereto (the “Funding Parties”) confirming the respective counterparties’ commitments to provide Parent with equity financing in connection with the transactions contemplated hereby (the “Equity Financing,” and together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood Assuming that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in contemplated by the Financing Commitment Letters have been withdrawn or rescinded in any respect. The Financing Lettersis fully funded, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, Subsidiary will have at and after the Closing funds sufficient to consummate the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent on upon the terms therein contemplated by this Agreement and there are no other conditions precedent or other contingencies pay all related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, fees and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none expenses of Parent, Merger Sub or any of Subsidiary and their respective Affiliates is a party Representatives pursuant to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant Company has received and accepted (1) a commitment letter dated November 27, 2006 (the "Commitment Letter"), from the lenders party thereto (collectively, the "Lenders") relating to the Financing Letters commitment of the Lenders to provide the debt financing required by Mercury and its subsidiaries to effect the Refinancing (as defined below) and to pay related fees and expenses of the Transactions, (2) a commitment letter dated November 27, 2006 (the "Company Commitment Letter"), from Aozora Bank, Ltd., ("Aozora")relating to the commitment of Aozora to provide the bridge financing (the "Bridge Financing") required by the Company, the Purchasers and the holders of Mercury common stock and holders of Mercury preferred stock to consummate the Merger, the Acquisition and the Other Stock Acquisitions, (3) the commitment letter dated November 27, 2006, from Aozora, on behalf of the lenders (the "Company Lenders") under the Company's existing credit facility (the "Company Consent Letter") to enter into a consent agreement confirming the approval by the Company Lenders of certain amendments to the Company's existing credit facility required thereunder by the Company in connection with the Transactions and Refinancing (as defined below) (the "Company Facility Amendments") and (4) a commitment letter dated November 27, 2006 (the "Equity Commitment" and, together with the cash on hand of Parent and its SubsidiariesCommitment Letter, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub Company Commitment Letter and the Surviving Corporation in connection with Company Consent Letter, the Merger "Commitments"), between RHJI, and the Financing; and (iii) satisfy all Company relating to the agreement of RHJI to provide the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered equity financing to the Company as specified therein (the "RHJI equity financing"). The Company has provided or made available to the Purchasers' Representative a true, correct and complete copy of each of the Commitments. The financing contemplated by the Commitment Letter, the Company Consent Letter and the Company Commitment Letter is referred to herein as the "Financing."
(b) Subject to its terms and conditions, the Financing, RHJI equity financing and the Acquisition, when funded in accordance with the applicable terms and conditions of the Commitment Letter, Company Commitment Letter, Company Consent Letter, Equity Commitment and this Agreement, will provide Acquisition Sub with funds at the Effective Time sufficient to (i) consummate the executed commitment letter (the “Equity Financing Letter”)Merger, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) finance the executed commitment letter, dated Consent Solicitations (as of defined in the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”Merger Agreement), pursuant to which (iii) refinance the lenders party thereto have committed, subject to existing indebtedness of Mercury and its subsidiaries described in the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit "Refinancing"), (iv) provide the numerical amounts provided thereinBridge Financing and (v) (any such fee letter, a “Fee Letter”)
(c) As pay related fees and expenses of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersTransactions.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand Each of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and affirms that it is not a condition to the Surviving Corporation in connection with the Closing that Parent and/or Merger and the Financing; and (iii) satisfy all Sub obtain financing for or related to any of the other payment obligations of Parent, Merger Sub and the Surviving Corporation transactions contemplated hereunder.
(b) hereby. Parent and Merger Sub have delivered to furnished the Company with a true, correct and complete copy of (ia) the executed commitment letter (the “Equity Financing Commitment Letter”), dated as of the date hereof, among Parent, Merger Sub Parent and the other parties thereto Guarantors (collectivelyincluding all exhibits, schedules, annexes, supplements and amendments thereto, the “Equity Financing SourcesCommitment Letter”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (iib) the executed commitment letterDebt Commitment Letter, dated as of the date hereof, from among Credit Suisse Securities (USA) LLCLLC and Credit Suisse AG, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingCayman Islands Branch (the “Debt Financing Sources”) and Parent and Merger Sub and each executed fee letter and engagement letter associated therewith (provided, Inc.that provisions in the fee or engagement letter related solely to fees, Royal Bank of Canadaflex terms and other economic terms (other than covenants) agreed to by the parties may be redacted (such commitment letter(s), RBC Capital Marketsincluding all exhibits, SunTrust Bankschedules, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇annexes, Inc.supplements and amendments thereto and each such redacted fee letter and engagement letter, and The Bank of Tokyo-Mitsubishi-UFJcollectively, Ltd. (the “Debt Commitment Letter,” and, and together with the Equity Financing Commitment Letter, the “Financing Commitment Letters”), pursuant to which . None of the lenders party thereto have committed, subject Commitment Letters has been amended or modified prior to the terms thereofdate hereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain no such amendment or modification is contemplated as of the debt facilities date hereof (other than solely in connection with the appointment of additional agents and arrangers as contemplated under by the Debt Commitment Letter) and), together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any respect. The There are no side letters or other Contracts or arrangements to which Parent or any of its Affiliates is a party or of which Parent has Knowledge that could adversely affect the amount, availability or conditions of the Financing Letters, other than as expressly set forth in the form so delivered Commitment Letters furnished to the Company pursuant to this Section 6.6 and any customary engagement letters and non-disclosure agreements that do not impact the conditionality for the Financing to occur or the amount of the Financing. Assuming (i) the satisfaction of the conditions set forth in Section 8.1, (ii) the Rollover is consummated as contemplated in the Equity Commitment Letter, and (iii) the commencement and completion of the Marketing Period, the aggregate net proceeds contemplated by the Commitment Letters, when funded in accordance with the applicable Commitment Letters on the Closing Date, will be sufficient when funded, together with Cash on Hand, for Parent and the Surviving Corporation to pay and satisfy in full (a) the obligations pursuant to this Agreement to pay the Estimated Merger Consideration, the Additional Consideration (if any), the Additional Executive Company RSU Holder Transaction Payments (if any), the Rollover Adjusted Merger Consideration Escrow Amount and the Holdback Amount, (b) all amounts payable at Closing pursuant to Sections 3.4 and 3.5, and (c) all fees and expenses of Parent and Merger Sub in connection with the transactions contemplated by this Agreement payable at Closing. The Commitment Letters are not subject to any conditions precedent relating to the funding of the Financing other than as set forth therein and, as of the date hereof, are binding and in full force and effect as of and are the date hereof. The Financing Letters are (i) legal, valid (assuming due authorization, execution and delivery by the other parties thereto), binding and enforceable obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, Sub and, to the Knowledge of Parent, each of the other parties thereto, as the case may be, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium subject to the Bankruptcy Exceptions. All commitments and other similar laws affecting or relating fees required to creditors’ rights generally. The Financing be paid under the Commitment Letters and the Fee Letter contain all of the conditions precedent prior to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financingdate hereof have been paid in full. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to Assuming the satisfaction of the conditions set forth in Article VI Section 8.1 and the performance commencement and completion of the Marketing Period, and based upon facts and events known by Parent as of the Company of its obligations under this Agreementdate hereof, neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing funding contemplated in by the Financing Commitment Letters will not be satisfied or that the Financing aggregate proceeds contemplated by the Commitment Letters will not be made available to Parent and Merger Sub at or prior to on the Closing Date. ; provided that Parent and Merger Sub have fully paid, is not making any representation or caused to be fully paid, warranty regarding the effect of any and all commitment or other fees which are due and payable on or prior to the date hereof pursuant to the terms inaccuracy of the Financing Letters. Other than representations and warranties of the Fee Letter and as Company set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger Article V or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Company’s compliance hereunder.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have previously delivered to the Company a true, correct and complete copy of the following: (i) the a fully executed commitment letter (the “Equity Financing "Senior Debt Letter”)") from Bear, dated as of the date hereofStearns & Co. Inc., among ParentJ.P Morgan Securities Inc., Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇Deutsche Bank Securit▇▇▇ ▇▇▇▇▇▇▇ Senior Funding., Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇Bear Stear▇▇ ▇▇▇▇▇▇▇▇, te Lending Inc., JPMorgan Chase Bank and The Deutsche Bank of Tokyo-Mitsubishi-UFJ, Ltd. ▇▇ ▇▇▇man Islands Branch (the “"Banks") and accepted by Parent, providing the terms and conditions upon which the Banks have committed to provide the senior secured revolving credit portion of the financing required in connection with the Merger, (ii) a fully executed forward underwriting commitment (the "Subordinated Debt Letter") from Bear, Stearns & Co. Inc., J.P Morgan Securities Inc. and Deutsche Bank Secu▇▇▇▇▇▇ Inc. and acce▇▇▇▇ ▇▇ ▇▇rent with respect to the placement of subordinated debt of the Surviving Corporation pursuant to an offering under Rule 144A of the Exchange Act, (iii) a fully executed letter (the "Kelso Equity Commitment Letter” and") from Kelso & Company ("Kelso") and a▇▇▇▇▇ed by Parent with respect to a po▇▇▇▇▇ of the equit▇ ▇▇▇ancing required in connection with the Merger and (iv) a fully executed commitment letter from Church & Dwight Co., Inc. (the "Church & Dwight Letter") and accepted by Paren▇ ▇▇▇▇ respect to a portion of t▇▇ ▇▇▇ity/debt financing required in connection with the Merger (the Church & Dwight Letter, together with the Equity Financing Senior Debt Letter, the “Subordinated ▇▇▇▇ Letter and the Kelso Equity Commitment Letter, the "Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”"). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, The financi▇▇ ▇▇ntemplated by the Financing Letters have not been amended (the "Financing") is sufficient to pay the aggregate Merger Consideration and Cash Amount and pay all fees and expenses (including, without limitation, legal, accounting and investment banking expenses, change of control payments, and repayment of indebtedness) to be paid by Parent, Sub, the Company or modified and none any of their respective affiliates related to the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respecttransactions contemplated hereby. The Financing Letters, in the form so delivered to the Company on the date hereof, Letters are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to fund the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, commitments under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and are not subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement condition other than as set forth in the Financing Letters.
(e) As of . All commitment and other fees required to be paid under the Financing Letters on or prior to the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)hereof have been paid.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the has received an executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLCBank of America, N.A., ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Senior FundingIncorporated, Inc.▇▇▇▇▇ Fargo Bank, Royal National Association, and ▇▇▇▇▇ Fargo Securities, LLC (the “Term B Lenders”), including all exhibits, schedules, annexes and amendments thereto in effect as of the date hereof, and excerpts of those portions of the fee letter associated therewith that contain any conditions to funding or “flex” provisions (the “Term B Commitment Letter”), a copy of which is attached hereto as Exhibit D, pursuant to which the Term B Lenders have committed, on the terms set forth therein, to provide the debt financing set forth therein. In addition, Parent has received an executed commitment letter, dated as of the date hereof, from ▇▇▇▇▇ Fargo Capital Finance, LLC, Bank of CanadaAmerica, RBC Capital Markets, SunTrust Bank, SunTrust ▇N.A. and ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. ▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (the “Debt ABL Lenders” and together with the Term B Lenders, the “Lenders”), including all exhibits, schedules, annexes and amendments thereto and any associated letter in effect as of the date hereof that contain any conditions to funding or “flex” provisions (the “ABL Commitment Letter” and, together with the Equity Financing Term B Commitment Letter, the “Financing Commitment Letters”), a copy of which is attached hereto as Exhibit E, pursuant to which the lenders party thereto ABL Lenders have committed, subject to on the terms thereofset forth therein, to lend provide to Parent the amounts debt financing set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain therein. The copies of the debt facilities Commitment Letters attached as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a Exhibit D and Exhibit E are true, accurate and complete and correct copy copies of any fee letter the Commitment Letters as in connection with effect on the Debt date of this Agreement. There are no conditions precedent, contingencies, “flex” provisions or other substantive provisions regarding the Financing other than as expressly set forth in the Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) Letters. As of the date hereof, the Financing Commitment Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) and constitute legal, valid and binding obligations of Parent and Merger Sub, as applicableParent, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting . None of the Commitment Letters have been terminated or relating to creditors’ rights generally. The Financing Letters withdrawn and the Fee Letter contain all of respective commitments contained in 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 precedent Commitment Letters have not been withdrawn, modified or other contingencies related to the funding of the full amount of the Financing. As rescinded in any respect as of the date of this Agreement. As of the date hereof, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of its Affiliates under either of the assumptions or statements set forth in Commitment Letters. Assuming the Financing funding of the financing contemplated to be funded on the Closing Date by the Commitment Letters inaccurate in any material respect(the “Financing”), Parent will have sufficient funds available to consummate the transaction contemplated by this Agreement on the Closing Date. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any no reason to believe that any of the conditions precedent to the funding of the Financing contemplated in the Financing Commitment Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (Polyone Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Buyer has delivered to the Company a true, correct Seller true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereofhereof (such commitment letter, including all exhibits, schedules, annexes and amendments thereto, as may be modified pursuant to Section 6.04, the “Debt Financing Commitments” or the “Financing Commitments”), among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Specialty Lending Holdings, Inc., AXA Equitable Life Insurance Company, Special Value Continuation Partners, LP, TCPC Funding I, LLC, ▇▇▇▇▇▇▇▇▇▇ Senior Loan SPV, Inc.LLC, and The Bank of Tokyo▇▇▇▇▇▇▇▇▇▇ Senior Loan Fund II, LP, ▇▇▇▇▇▇▇▇▇▇ Senior Loan Fund IV-MitsubishiA, LLC, ▇▇▇▇▇▇▇▇▇▇ Senior Loan Fund IV-UFJB, Ltd. LP, Crestline Specialty Lending, L.P., Providence Debt Fund III SPV LP, Providence Debt Fund III LP, PECM Strategic Funding LP, Benefit Street Partners Capital Opportunity Fund LP, Benefit Street Partners SMA LM LP, Benefit Street Partners SMA-C SPV LP, Benefit Street Partners Senior Secured Debt Master Fund (the “Debt Commitment Letter” andNon-US) LP, together with the Equity Financing Letter▇▇▇▇▇▇▇▇▇ Square Private Credit Fund, L.P., AB Private Credit Investors Middle Market Direct Lending Fund, L.P. (collectively, the “Financing LettersCommitment Parties”), pursuant to which each of the lenders party thereto have committedCommitment Parties has agreed, subject to the terms and conditions thereof, to lend a portion of the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, or the “Financing”)) for the purpose of funding the Transactions and related fees and expenses. Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, each of the Financing Commitments, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Parent and, to the knowledge of Buyer, the other parties thereto. As of the date of this Agreement, the Financing Letters Commitments have not been amended amended, supplemented or otherwise modified in any respect, no amendment, supplement or modification is contemplated (except, in each case, with the prior written consent of Seller or as permitted by Section 6.04), and none of the respective obligations and financing commitments contained in the Financing Letters thereunder have not been withdrawn withdrawn, terminated or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, thereto under any term or condition of the Financing Letters Commitments, and Buyer has no reason to believe that any term or that makes any condition of the assumptions or statements closing set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters Commitments will not be satisfied on a timely basis, or that any portion of the Financing to be made thereunder will otherwise not be made available to Parent and Merger Sub on a timely basis to consummate the Transactions at or prior the time required pursuant to the Closing Datethis Agreement. Parent and Merger Sub have has fully paid, or caused to be fully paid, paid any and all commitment fees or other fees which are due and payable required by the Financing Commitments to be paid thereunder on or prior to the date hereof of this Agreement and Buyer shall cause Parent in the future to pay any such fees as they become due. The Financing, when funded in accordance with the Financing Commitments and contributed by Parent to Buyer, together with cash on hand or other sources of immediately available funds, will provide Buyer with funds sufficient to satisfy all of Buyer’s obligations under this Agreement, including the obligations under Article II, pay any other amounts required to be paid by Buyer in connection with the consummation of the Transactions and pay all related fees and expenses of Buyer. The obligations to make the Financing available to Parent pursuant to the terms of the Financing Letters. Other Commitments are not subject to any conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than the Fee Letter and as expressly set forth in Schedule 3.10(c)the Financing Commitments. As of the date of this Agreement, there are no side letters Contracts or other Contracts agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) to which Parent Buyer 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 as expressly set forth contained in the Financing Letters.
(d) As of Commitments and delivered to Seller prior to the date hereof. For the avoidance of doubt, none of Parent, Merger Sub it is not a condition to Closing under this Agreement for Parent or Buyer to obtain the Financing or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Lettersalternative financing.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Stock Purchase Agreement (Factset Research Systems Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (ia) the an executed commitment letter (the “"Equity Financing Commitment Letter”), dated as of ") from the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”)Parties, pursuant to which the Equity Financing Sources Parties have committed, subject committed to the terms thereof, to invest the cash amounts set forth therein provide equity financing in an aggregate amount of $433,300,000 and (b) an executed commitment letter (the “Equity Financing”"Debt Commitment Letter") and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Brothers Commercial Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, pursuant to which ▇▇▇▇, Inc., ▇▇ Brothers Commercial Bank and The Bank ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation have committed to provide debt financing ("Debt Financing") in an aggregate amount of Tokyo-Mitsubishi-UFJ, Ltd. $1,300,000,000 (the “Debt Equity Commitment Letter” and, Letter together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”"Financing Commitments"). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As Each of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing LettersCommitments, in the form so delivered to the Company on the date hereofdelivered, are is in full force and effect as of the date hereof. The Financing Letters are (i) and is a legal, valid and binding obligations obligation of Parent and Merger SubParent, as applicable, the Equity Parties and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, the lenders party to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyDebt Commitment Letter. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding in full of the full amount of financings contemplated by the Financing Commitments other than as set forth therein (the "Financing"). As of the date hereof, (i) none of this Agreementthe Financing Commitments has been modified or amended, (ii) no event has occurred or circumstance exists which, with or without notice, lapse of time time, or both, would or would reasonably be expected to constitute a default or breach on the part of by Parent or Merger Sub, as applicable, Sub under any term or to the Knowledge condition of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth Financing Commitments and (iii) to the knowledge of Parent and Sub, the commitments contained in the Financing Letters inaccurate Commitments have not been withdrawn or rescinded in any material respect. As of the date hereof, Parent and subject to the satisfaction Sub (i) are not aware of any fact or occurrence that makes any of the conditions set forth assumptions in Article VI and any of the performance by the Company of its obligations under this AgreementFinancing Commitments inaccurate, neither Parent nor Merger Sub has any (ii) have 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 the Financing contemplated in the Financing Letters will not be satisfied or believe that the Financing required to consummate the transactions contemplated hereby will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent and Merger Sub have fully paid, acknowledges that its obligations under this Agreement are not conditioned upon or caused subject 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 terms its receipt of the proceeds made available under the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent Commitments 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 as expressly set forth in the Financing Lettersfinancing.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate Purchaser has received and accepted Equity Commitment Letters from the Equity Financing Sources relating to the commitment of the Equity Financing Sources, subject to the terms and conditions thereof, to invest in Purchaser up to the full amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiariesequity financing stated therein (such equity financing, is sufficientcollectively, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the “Equity Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder”).
(b) Parent Purchaser has received and Merger Sub have delivered to the Company accepted a true, correct and complete copy of (i) the executed debt commitment letter (the “Equity Financing Letter”), dated as of on or about the date hereofhereof (including all exhibits, among Parentschedules, Merger Sub annexes and the other parties thereto (collectivelyamendments thereto, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to and as supplemented or amended in accordance with the terms thereofof Section 5.6(a) hereto, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter”), and (ii) corresponding fee letter (subject to customary redactions by Purchaser) dated on or about the date hereof (including all exhibits, schedules, annexes and amendments thereto, and as supplemented or amended in accordance with the terms of Section 5.6(a) hereto, the “Debt Fee Letter,” and, together with the Equity Financing Debt Commitment Letter, the “Debt Financing Commitment Letters”); the Debt Financing Commitment Letters, pursuant to which together with the lenders Equity Commitment Letters, the “Commitment Letters”) from the lenders, agents, arrangers and bookrunners party thereto have committed(as such parties may be supplemented or amended in accordance with the terms of Section 5.6(a) hereto, the “Lenders”) relating to the commitment of the Lenders, subject to the terms and conditions thereof, to lend provide debt financing in the amounts aggregate amount set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). .
(c) Assuming that each of the conditions in Article 6 is satisfied in accordance with its terms at or prior to the Closing, as of the date hereof, (i) the net proceeds of the Equity Financing, when funded in accordance with the Equity Commitment Letters, will provide Purchaser, together with cash on hand or other sources of immediately available funds, with all of the funds necessary to make all payments required to be made by it at the Closing hereunder and (ii) the net proceeds of the Debt Financing will provide NewCo with all of the funds necessary to make the distribution to Parent pursuant to Section 2.7(a).
(d) Purchaser has also delivered to Parent true, accurate and complete copies of the Company Commitment Letters (in the case of the fee letter, subject to customary redactions by Purchaser), including all exhibits, schedules and annexes thereto, as of the Execution Date. The Equity Commitment Letters provide that Parent is an express third-party beneficiary in connection with Parent’s exercise of its rights under Section 9.10 of this Agreement to the extent set forth in the Equity Commitment Letters.
(e) As of the Execution Date, each of the Commitment Letters is a legal, valid and binding obligation of Purchaser and, to the Knowledge of Purchaser, each other party thereto, enforceable in accordance with its terms, subject to the Bankruptcy and Equity Exception, and in full force and effect, has not been amended, modified, withdrawn, terminated or rescinded in any respect. As of the Execution Date, no event has occurred that would reasonably be expected to (i) constitute a breach or default thereunder on the part of Purchaser or (ii) to the Knowledge of Purchaser, result in the failure of any condition to the Financing.
(f) As of the Execution Date, there are no other contracts, side letters, other written agreements, arrangements, conditions precedent, contingencies or other provisions relating to the funding of the Financing, to which Purchaser or any of its Affiliates is a party, other than (i) as expressly set forth in the Commitment Letters, (ii) agreements among the Equity Financing Sources (none of which adversely affect the conditionality, enforceability, availability or termination of the Equity Financing), (iii) customary engagement letters or customary fee letters with respect to the Debt Financing (none of which adversely affect the conditionality, enforceability, availability or termination of the Debt Financing) or (iv) made available to Parent prior to the Execution Date.
(g) Except as expressly set forth in the Commitment Letters, there are no conditions precedent to the obligations of the Lenders and the Equity Financing Sources to provide the Debt Financing or the Equity Financing, respectively, or any contingencies that would permit the Lenders or the Equity Financing Sources to reduce the total amount of the Debt Financing or the Equity Financing, respectively, below the amount required to consummate the Transactions.
(h) Concurrently with the execution of this Agreement, Purchaser delivered to Parent a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) executed Limited Guarantee. As of the date hereofExecution Date, the Financing Letters have not been amended or modified Limited Guarantee is valid, binding and none of the respective obligations enforceable in accordance with its terms, and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are is in full force and effect as of the date hereof. The Financing Letters are (i) legaleffect, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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, subject in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein Bankruptcy and there are no other conditions precedent or other contingencies related to the funding of the full amount of the FinancingEquity Exception. As of the date of this AgreementExecution Date, no event has occurred or circumstance exists whichthat, with or without notice, lapse of time time, or both, would or 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, as applicable, or to the Knowledge of Parent, any other parties thereto, Guarantor under the Financing Letters or that makes any terms and conditions of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersLimited Guarantee.
(di) As The obligations of Purchaser to consummate the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement hereby are not contingent on the ability to obtain any financing other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including extent expressly provided in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct accurate and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed debt commitment letter, dated as of the date hereofof this Agreement, from Credit Suisse Securities by and among Merger Sub and the Lenders, including all exhibits, schedules, annexes and amendments thereto and the executed fee letter associated therewith redacted in a manner as described below (USAcollectively, as amended, restated, replaced, substituted, supplemented, waived or otherwise modified in accordance with Section 6.15(b) LLCor, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingin the case of an Alternative Financing, Inc.in accordance with Section 6.15(c), Royal Bank of Canadathe “Debt Commitment Letter”), RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.pursuant to which, and The Bank subject to the terms and conditions of Tokyo-Mitsubishi-UFJwhich, Ltd. the Lenders have committed to lend the amounts set forth therein to Merger Sub for the purpose of funding the Merger and the other Transactions (the “Debt Financing”), and (ii) an executed equity commitment letter, dated as of the date of this Agreement, by and among Parent and Sponsor, including all exhibits, schedules, annexes and amendments thereto (the “Equity Commitment Letter” and, together with the Equity Financing Debt Commitment Letter, the “Financing Commitment Letters”), pursuant to which the lenders party thereto have committedwhich, and subject to the terms thereofand conditions of which, Sponsor has committed to lend provide the amounts set forth therein to Parent for the purpose of funding a portion of the Merger (such committed equity financing, the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereofof this Agreement, the Financing Commitment Letters (i) are in full force and effect, (ii) to the knowledge of Parent, have not been withdrawn, rescinded or terminated, or (iii) have not been amended or modified in any respect and none each of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Commitment Letters, in the form so delivered to the Company on the date hereofdelivered, are in full force and effect as of the date hereof. The Financing Letters are (i) constitutes a legal, valid and binding obligations obligation of Parent and or Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) thereto, enforceable in accordance with their respective terms against Parent and it or Merger Sub, as applicable, andor, to the Knowledge knowledge of Parent, each of the other parties thereto, as the case may be, in each case accordance with its terms except as such enforceability may be limited affected by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws affecting or Laws relating to or affecting creditors’ rights generally, and general equitable principles. The Financing Letters Except for the fee letter referred to above (a true, accurate and complete copy of which has been provided to the Fee Letter contain all Company with only the fee amounts, economic terms contained in any “flex” provisions, pricing caps and other economic terms contained therein redacted with no such redaction covering terms that would adversely affect the amount, conditionality or availability of the conditions precedent Debt Financing) and non-disclosure agreements, the Commitment Letters are the only agreements to the obligations which Parent or Merger Sub is a party relating to funding or investing, as applicable of the parties thereunder to make Financing as of the Financing available to Parent on the terms therein and date of this Agreement. Other than as expressly set forth in such Commitment Letters, there are no other agreements or arrangements, conditions precedent or other contingencies related to the funding of the full amount of the Financing. The Equity Commitment Letter provides that the Company is an express third-party beneficiary in connection with Company’s exercise of its rights under Section 9.6, and that Parent agrees not to oppose the grant of an injunction, specific performance or other equity relief in connection with the exercise of such third party rights.
(c) As of the date of this Agreement, (i) 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 or Merger Sub, as applicable, or to the Knowledge of Parent, under any other parties thereto, under the Financing Letters or that makes any term of the assumptions or statements set forth in the Financing Commitment Letters inaccurate in any material respect. As of the date hereof, and subject to (ii) assuming the satisfaction of each of the conditions set forth in Article VI Section 7.1 and Section 7.2, Parent (x) has no reason (both before and after giving effect to any “flex” provisions contained in the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason Debt Commitment Letter) to believe that any of the conditions applicable to the Financing contemplated it in the Financing Commitment Letters will not be satisfied on the Closing Date and (y) knows of no fact, occurrence, circumstance or condition that would reasonably be expected to cause any Commitment Letter to be terminated, withdrawn, modified, repudiated or rescinded or to be or become unenforceable or otherwise cause the Financing will full amount (or any portion) of the funds contemplated to be available under the Commitment Letters to not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related to the funding or investingParent, as applicable, of on the full amount of the Financing other than as expressly set forth in the Financing LettersClosing Date.
(d) Parent or Merger Sub, as applicable, has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Commitment Letters to be paid on or before the date of this Agreement. Assuming the Financing is funded and/or invested in accordance with the Commitment Letters, Parent will have, in the aggregate and together with the available cash and cash equivalents of the Company, sufficient funds to pay the Per Share Merger Consideration, any other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the Transactions (including any amounts payable in respect of Company Stock Options and Company RSUs under this Agreement) and all associated fees, costs and expenses in connection with the Merger and the other Transactions, including the Financing, in each case, to the extent required to be paid on the Closing Date (collectively, the “Required Amount”).
(e) As of the date hereofof this Agreement, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter affiliates has entered into any ContractsContract, with arrangement or understanding (i) awarding any Person (including agent, broker, investment banker or financial advisor any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub financial advisory role on an exclusive basis in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented Transactions or (ii) entered into an exclusivityexpressly prohibiting any bank, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits 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 any of its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Transactions.
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Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the an executed commitment letter, dated as of the date hereofJune 3, from Credit Suisse Securities (USA) LLC2007, among Parent, ▇.▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Securities Inc. and JPMorgan Chase Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. N.A. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing LettersCommitments”), pursuant to which the lenders party thereto have committedJPMorgan Chase Bank, subject to the terms thereof, N.A. has agreed to lend the amounts set forth therein (the “Debt Financing”), and (ii) an executed equity commitment letter, dated as of June 3, 2007 between Parent and Fenway Partners Capital Fund III, L.P. (the “Equity Financing Commitments” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which Fenway Partners Capital Fund III, L.P. has committed to invest the amount set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, Parent has disclosed and made available to the Company all other agreements, arrangements or understandings (whether written or oral) related to the Financing. None of the Financing Letters have not Commitments has been amended or modified prior to the date of this Agreement, and none of the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered respect prior to the Company on date of this Agreement. As of the date hereofof this Agreement, the Financing Commitments are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, Sub and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all As of the conditions precedent to 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 obligations part of Parent or Merger Sub under any term or condition of the parties thereunder to make the Financing available to Parent on the terms therein and there Commitments. There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Financing Commitments. Parent has fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or prior to the date of this Agreement and shall in the future pay any such fees as they become due. The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments when delivered in accordance with the terms of the Financing Commitments will be sufficient for Parent and the Surviving Corporation to pay the aggregate Merger Consideration, Equity Incentive Consideration and to pay all related fees and expenses. As of the date of this Agreement, 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 assuming the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any accuracy of the assumptions or statements representations and warranties of the Company set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, Article III hereof and subject to the satisfaction of the conditions set forth in Article VI Sections 7.1 and the performance by the Company of its obligations under this Agreement7.2, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
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Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities Sponsor (USAthe “Equity Commitment Letter”) LLCto provide, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingsubject to the terms and conditions therein, Inc.financing in the aggregate amount set forth therein (the “Equity Financing”), Royal Bank and (ii) the executed commitment letter and the Redacted Fee Letter, each dated as of Canadathe date hereof, RBC from General Electric Capital Corporation, GE Capital Markets, SunTrust BankInc. and Jefferies Finance LLC (collectively, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Commitment Letter, the “Financing LettersCommitments”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend the amounts debt financing in an aggregate amount set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, none of the Financing Letters have not Commitments has been amended or modified modified, no such amendment or modification is presently contemplated, and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Parent or Sub has fully paid any and all commitment fees or other fees in connection with the Financing Letters, in the form so delivered Commitments that are payable on or prior to the Company on the date hereof, and, as of the date hereof, the Financing Commitments are in full force and effect as of and are the date hereof. The Financing Letters are (i) legalvalid, valid binding and binding enforceable obligations of Parent and Merger Sub, as applicablesubject to the Enforceability Exception, andand (in the case of the Debt Commitment Letter only, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) 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. Assuming the satisfaction of the conditions to Parent’s obligation to consummate the Offer and/or the Merger (as applicable), the net proceeds of the Financing if funded in accordance with the Financing Commitments are, in the aggregate, sufficient for Sub and the Surviving Corporation to pay the Offer Price in respect of each share of Company Common Stock validly tendered and accepted for payment in the Offer, the aggregate Merger Consideration, all amounts required to be paid pursuant to Section 3.04, and all fees and expenses directly related to the Debt Financing required to be paid by Parent, Sub and the Surviving Corporation. 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, Sub or Sponsor (in the case except as such enforceability may of Parent and Sponsor, only with respect to the Equity Commitment Letter) under the Financing Commitments or, to the knowledge of Parent and Sub, any other party thereto. As of the date of this Agreement, neither Parent nor Sub has any reason to believe that any of the conditions to the Financing will not be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting satisfied or relating that the full amount of the Financing will not be available to creditors’ rights generallyParent or Sub on the date of the Closing. The Financing Letters and the Fee Letter Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make the full amount of the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to in the funding of the full amount of the FinancingFinancing Commitments. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts agreements, 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contractsparty, that could increase the conditionality or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee reduce the amount of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing LettersDebt Financing.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (ai) The aggregate Assuming the accuracy of the representations and warranties set forth in Section 5.1(b)(i) and the performance by the Company of its obligations under this Agreement, the amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, shall be sufficient to (i) pay the aggregate Per Share Price Merger Consideration and to fund any other repayment or refinancing of Indebtedness debt contemplated by in this Agreement or the Financing Letters; (ii) pay any and all fees and expenses Letters or required pursuant to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all terms of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunderIndenture.
(bii) Parent and Merger Sub have delivered to the Company a truecomplete and accurate copy, correct and complete copy as of the date of this Agreement, of (i) the an executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), ) pursuant to which the Equity Financing Sources investors party thereto have committed, upon the terms and subject to the terms conditions thereof, to invest the cash amounts set forth therein (the “Equity Financing”) ), and (ii) the an executed commitment letter, dated as of the date hereofof this Agreement, from Credit Suisse Bank of America Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Citigroup Global Markets Inc., Royal Barclays Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.PLC and Deutsche Bank Trust Company Americas, and The Bank each of Tokyo-Mitsubishi-UFJ, Ltd. their respective affiliated entities named therein (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committedcommitted to provide, subject to upon the terms thereofand subject conditions therein, to lend the amounts debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with The term “Debt Commitment Letter” as used herein shall mean the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit extent not superseded by the numerical amounts provided thereinNew Debt Commitment Letter (as defined in Section 6.14(b)(ii)) (any such fee letter, a “Fee Letter”)
(c) As of at the date hereof, time in question and the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered New Debt Commitment Letter to the Company on the date hereof, are extent then in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letterseffect.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated Buyer has delivered to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent Seller true and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all complete copies of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed debt commitment letter from Deutsche Bank AG New York Branch, Deutsche Bank Securities Inc., Banc of America Securities LLC and Bank of America, N.A. (the “Equity Financing Debt Commitment Letter”), dated as of the date hereofDecember 10, among Parent2007, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed capital commitment letter, dated as of the date hereof, letters from Credit Suisse Securities (USA) LLC, B▇▇▇▇▇▇ & B▇▇▇▇ Infrastructure Limited, BBIFNA AIV Two, LP, B▇▇▇▇▇▇ & B▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingPty Ltd, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.Public Sector Pension Investment Board, and The Bank of Tokyo-Mitsubishi-UFJStichting Pensioenfonds voor de Gezondheid, Ltd. Geestelijke en Maatschappelijke Belangen (PGGM) (the “Debt Investor Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committeddated December 10, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing2007. As of the date of this Agreement, no event has occurred the Debt Commitment Letter and the Investor Commitment Letter and the commitments contained therein, in the form so delivered, (i) have not been in any manner withdrawn, altered, amended, modified, rescinded or circumstance exists whichrevoked, with or without notice(ii) are in full force and effect and (iii) are legal, lapse valid and binding obligations of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub, as applicable, or Buyer and to the Knowledge of ParentBuyer, any each of the other parties thereto. The Investor Commitment Letter provides that the parties to such Investor Commitment Letter are obligated to fund their commitments under such letter for the purpose of paying the Purchase Price in the event that either (a) Buyer agrees that the conditions in Article 9 have been satisfied or waived, or (b) the Arbitrator delivers a Satisfied Conditions Decision pursuant to Article 10, or is deemed to have issued or delivered a Satisfied Conditions Decision in accordance with Section 10.1(a). The Investor Commitment Letter also provide that (i) (x) it cannot be withdrawn, rescinded or revoked or assigned (whether by operation of law, merger consolidation or otherwise; provided that B▇▇▇▇▇▇ & B▇▇▇▇ Infrastructure Limited may assign all or a portion of its rights and obligations under the Financing Letters Investor Commitment Letter to Affiliates it controls or to B▇▇▇▇▇▇ & B▇▇▇▇ Infrastructure Trust and Affiliates controlled by B▇▇▇▇▇▇ & B▇▇▇▇ Infrastructure Trust) prior to their term and cannot otherwise be altered, amended or modified in a manner adverse to Seller, Buyer or the Company or that makes would adversely impact the ability of any of them to consummate the assumptions transactions contemplated hereunder or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to would delay the Closing Date. Parent , and Merger Sub have fully paid, or caused (y) the parties thereto and the amounts they are committed to fund cannot 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal)changed, in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).each case
Appears in 1 contract
Sources: Purchase Agreement (Knight Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to furnished the Company a truewith evidence of its ability to pay and satisfy in full each of the following (“Required Amount”): (a) the Merger Consideration and all of Parent’s obligations under this Agreement, correct and complete copy (b) all amounts payable by the Company and/or ▇▇▇▇▇▇▇ Global Holdings, Inc. (“Holdings”) in connection with any repayment or refinancing of debt contemplated in the Debt Commitment Letters, including (1) payments contemplated by Section 5.12 in connection with (i) the 7 7/8% Senior Subordinated Notes due 2012 pursuant to the indenture dated as of December 23, 2004 among Holdings, the guarantors named therein and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee, and (ii) the Senior Floating Rate Notes due 2012 pursuant to the indenture dated December 23, 2004 among Holdings, the guarantors named therein and ▇▇▇▇▇ Fargo Bank, National Association, as Trustee, and (2) all amounts payable by the Company and/or Holdings in connection with the repayment of the credit agreement dated as of December 23, 2004 among the Company, Holdings, the lenders party thereto and JPMorgan Chase Bank, N.A., as administrative agent for the lenders, UBS Securities LLC, as syndication agent, Credit Suisse First Boston, acting through its Cayman Islands branch, as documentation agent, and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and UBS Securities LLC as joint lead arrangers and joint book managers (as amended, modified, supplemented or restated from time to time) and (c) all fees and expenses related to the foregoing, in each case in the form of (x) the executed equity commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereof, among Parent, Merger Sub Sub, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners VI, L.P. (“Sponsor”), and the other parties thereto (collectivelythereto, the “Equity Financing Sources”), pursuant to a true and complete copy of which the Equity Financing Sources have committed, subject has been made available to the terms thereof, to invest the cash amounts set forth therein Company (the “Equity FinancingCommitment Letter”) and (iiy) the executed debt commitment letterletters, dated as of the date hereof, from Credit Suisse Securities among (USAA) Barclays Bank PLC, Calyon New York Branch, General Electric Capital Corporation, GSO Capital Partners LP, Parent and Merger Sub (the “Senior Debt Commitment Letter” and (B) GSO Capital Funding LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Farallon Funding, Inc.L.L.C., Royal Bank Parent and Merger Sub (collectively with the related Limited Guaranties, true and correct copies of Canadawhich have been made available to the Company, RBC Capital Marketsthe “Subordinated Debt Commitment Letter”; together with the Senior Debt Commitment Letter, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment LetterLetters,” and, and together with the Equity Financing Commitment Letter, the “Financing Commitment Letters”), pursuant to true and complete copies of which the lenders party thereto have committed, subject been made available to the terms thereof, Company (it being understood that the fee letters associated with such Commitment Letters have been made available in redacted form). The financing contemplated by the Debt Commitment Letters is referred to lend the amounts set forth therein (as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as and financing contemplated under the Debt Commitment Letter) and, together with by the Equity Commitment Letter is hereinafter referred to as the “Equity Financing, .” The Debt Financing and the Equity Financing are collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As .” The obligations of the date hereof, financing sources to fund the Financing commitments under the Commitment Letters have are not been amended or modified subject to any conditions other than as set forth therein and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of on the date hereof. The Financing All commitments and other fees required to be paid under the Commitment Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, prior to the Knowledge date hereof have been paid, and Parent is unaware of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting any fact or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent occurrence existing on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no event has occurred or circumstance exists which, hereof that (with or without notice, lapse of time time, or both, would or ) would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes (W) make any of the assumptions or any of the statements set forth in the Financing Commitment Letters inaccurate inaccurate, (X) result in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions in the Commitment Letters not being satisfied, (Y) cause the Commitment Letters to be ineffective, or (Z) otherwise result in the Financing funding contemplated in the Financing Commitment Letters will not be satisfied or that the Financing will not be made being available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a timely basis exclusive in order to Parent or Merger Sub other than advisors to which consummate the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused shall amend or induced modify any Person Debt Commitment Letter between the date of this Agreement and the Effective Time unless such amendment or modification (a) does not adversely amend or expand upon the conditions precedent to take the Financing as set forth in the Debt Commitment Letters in any action thatmaterial respect, if taken by Parent (b) is not reasonably expected to delay or Merger Sub, would be a breach of, or would cause to be untrue, any hinder the Closing and (c) does not reduce the aggregate amount of the representations in this Section 3.10(e)available Financing.
Appears in 1 contract
Financing. Parent has delivered to the Company true, complete and correct copies of (a) The (i) the executed commitment letter, dated as of the date hereof, among Parent, Parent Inc., Parent LP, ▇▇▇▇ ▇▇ Investments, LLC and ▇▇▇▇ Industries, Inc. (collectively, including all exhibits, schedules, and annexes thereto, the “Preferred Securities Commitment Letter” and, as the same may be amended or replaced pursuant to Section 6.12(a) and, including any executed commitment letter or similar agreement for Alternative Financing, in each case pursuant to Section 6.12(a), and any executed fee letter, collectively, the “Preferred Securities Financing Commitments”), pursuant to which the commitment parties thereto have committed, subject to the terms and conditions set forth therein, to provide the aggregate amount of funds contemplated to the financing set forth therein (the “Preferred Securities Financing”) and (ii) the executed commitment letter, dated as of the date hereof, between Parent and Barclays Bank PLC, Citigroup Global Markets Inc., Citibank, N.A., Citicorp USA, Inc., Citicorp North America, Inc. and/or their affiliates, Deutsche Bank AG New York Branch, Deutsch Bank AG Cayman Islands Branch, Deutsche Bank Securities Inc., Royal Bank of Canada, RBC Capital Markets, PSP Investments Credit USA LLC, and PCDH 5, LLC (collectively, including all exhibits, schedules, and annexes thereto, the “Debt Commitment Letter” and, as the same may be provided amended or replaced pursuant to Section 6.12(a), and including any executed commitment letter or similar agreement for Alternative Financing, in each case, pursuant to Section 6.12(a), and any executed fee letter collectively, the “Debt Financing Commitments” and, together with the Preferred Securities Financing Commitments, the “Third-Party Financing Commitments”), pursuant to which the lenders thereto have committed, subject to the terms and conditions set forth therein, to provide the aggregate amount of the debt financing set forth therein (the “Debt Financing” and, together with the Preferred Securities Financing, the “Third-Party Financing”) and (b) the executed commitment letter, dated as of the date hereof (including all exhibits, schedules and annexes thereto, collectively, the “Equity Financing Commitment” and, together with the Preferred Securities Financing Commitments and the Debt Financing Commitments, the “Financing Commitments”), among Apollo Investment Fund VIII, L.P., Apollo Overseas Partners (Delaware 892) VIII, L.P., Apollo Overseas Partners (Delaware) VIII, L.P. and Apollo Overseas Partners VIII, L.P. (collectively, the “Equity Investors”) pursuant to which the Equity Investors have committed, subject to the terms and conditions set forth therein, to invest the cash amount set forth therein (the “Equity Financing” and together with the Third-Party Financing, the “Financing”). None of the Financing Letters Commitments has been amended or modified prior to the date of this Agreement, as of the date of this Agreement no such amendment or modification is contemplated, and as of the date of this Agreement the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect. Except for fee letters (complete copies of which have been provided to the Company, with only fee amounts, economic terms, market flex provisions and other customary threshold amounts redacted; provided that Parent represents and warrants that the market flex provisions in such fee letters do not permit the imposition of any new conditions (or the expansion of any existing conditions) with respect to the Debt Financing or any reduction in the amount of the Debt Financing) and customary fee credit letters or engagement letters, in each case, with respect to the Debt Financing (none of which adversely affect the conditionality, enforceability, termination or availability of the Debt Financing or reduce the Debt Financing below the Required Amount (as defined below), together after taking into account the Equity Financing and the Preferred Securities Financing, on the Closing Date), as of the date hereof there are no side letters or Contracts to which Parent or Merger Sub is a party related to the funding or investing, as applicable, of the Financing other than as expressly set forth in the Financing Commitments delivered to the Company prior to the date hereof. Parent has fully paid any and all commitment fees or other fees in connection with the cash Financing Commitments that are required to be paid pursuant to the terms of the Financing Commitments on hand or prior to the date hereof and Parent will, directly or indirectly, continue to pay in full any such amounts required to be paid pursuant to the terms of the Financing Commitments as and when they become due and payable on or prior to the Closing Date. As of the date hereof and subject to the Bankruptcy and Equity Exception, the Financing Commitments are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent and Merger Sub, as the case may be, and, to the knowledge of Parent and Merger Sub, each of the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitments. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub or, to the knowledge of Parent or Merger Sub, any other party thereto under any of the Financing Commitments. As of each of the date hereof, any date on which any “flex” provisions contained in the Debt Financing Commitments are exercised that have the effect of reallocating any commitments contained therein and on the Closing Date, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute an event of default or material breach on the part of Parent or Merger Sub or, to the knowledge of Parent or Merger Sub, any other party thereto under the Existing Parent Credit Agreements. Each of the Existing Parent Credit Agreements is valid and binding on Parent, Parent Holdings and each of their respective subsidiaries party thereto and, to the knowledge of Parent, each other party thereto, and is in full force and effect, enforceable in accordance with its Subsidiariesterms, subject to the Bankruptcy and Equity Exception. Parent has made available to the Company correct and complete copies of the Existing Parent Credit Agreements. On the Closing Date, both before and after giving effect to the Merger and the other transactions contemplated by this Agreement to be effected on the Closing Date, Parent Inc. shall have no indebtedness. As of the date hereof, assuming satisfaction of the conditions precedent set forth in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at the Closing), Parent has no reason to believe that any of the conditions to the Financing contemplated by the Financing Commitments applicable to it will not be satisfied or that the Financing will not be made available to Parent on the Closing Date. Assuming the Financing is sufficientfunded in accordance with the Financing Commitments, if fundedParent and Merger Sub will have on the Closing Date, funds sufficient to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; Merger Consideration, (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; , (iii) pay for any refinancing of any outstanding indebtedness of the Company, Parent, Merger Sub or their Affiliates contemplated by this Agreement or the Financing Commitments and (iiiiv) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
hereunder (b) the “Required Amount”). Each of Parent and Merger Sub have delivered to the Company affirms that it is not a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior condition to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, obligations under this Agreement that Parent or Merger Sub in connection with obtain the Merger and/or Financing or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive financing for or related to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)transactions contemplated hereby.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct complete and complete copy fully executed copies of (i) the executed commitment letter letters and fee letters (the “Equity Financing Letter”)which may be redacted as set forth in such commitment letters) (in each case, dated as of the date hereoftogether with all annexes, among Parentexhibits, Merger Sub schedules and the other parties thereto (attachments thereto, collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity FinancingDebt Commitment Letters”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Barclays Bank of Canada, RBC Capital MarketsPLC, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., MIHI LLC and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. MacQuarie Capital (the “Debt Commitment Letter” and, together with the Equity Financing LetterUSA) Inc. (collectively, the “Financing LettersLenders”), pursuant to ) providing the terms and conditions on which the lenders party thereto Lenders have committed, subject committed to provide Merger Sub with debt financing in connection with the terms thereof, to lend transactions contemplated hereby in the amounts amount set forth therein (the “Debt Financing”) and (ii) a commitment letter (together with all annexes, exhibits, schedules and other attachments thereto, the “Equity Commitment Letter” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under and together with the Debt Commitment LetterLetters, the “Financing Commitment Letters”) andfrom Siris Partners II, L.P., Siris Partners II Parallel, L.P., Siris Partners III, L.P. and Siris Partners III Parallel, L.P. (collectively, the “Equity Investors”) providing the terms and conditions upon which the Equity Investors have committed to provide Merger Sub with equity financing in connection with the transactions contemplated hereby in the amount set forth therein (the “Equity Financing” and together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereof, (i) the Financing Commitment Letters have not been amended amended, restated or otherwise modified and none of (ii) the respective obligations and commitments contained in the Financing Commitment Letters have not been withdrawn reduced, withdrawn, terminated or rescinded in any respect. The Financing Lettersrespect and, in the form so delivered to the Company on the date hereofParent’s Knowledge, are in full force and effect no reduction, withdrawal, termination or rescission is contemplated as of the date hereof. The Except for such Financing Commitment Letters delivered to the Company, as of the date hereof there are (i) legal, valid and binding obligations of Parent and Merger Subno side letters or other agreements or arrangements related to the funding or investment, as applicable, andof the Financing, except as set forth in the Financing Commitment Letters. All commitment fees or other fees required to be paid under the Financing Commitment Letters on or prior to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallydate hereof have been paid. The Financing Letters and the Fee Letter 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 only conditions precedent or other contingencies related to the funding obligations of the Equity Investors to fund the full amount of the FinancingEquity Financing and Lenders to fund the full amount of Debt Financing are those expressly set forth in the Equity Commitment Letter and the Debt Commitment Letter, respectively. The Equity Commitment Letter provides that the Company is a third party beneficiary thereunder to the extent provided therein. As of the date hereof, assuming the accuracy of the representations and warranties set forth in Article 4 in all material respects, the satisfaction of the conditions precedent to the Company’s, Parent’s and Merger Sub’s respective obligations under this Agreement, no event has occurred or circumstance exists whichthe compliance and performance in all material respects by the Company of its covenants and agreements set forth in this Agreement and the completion of the Marketing Period, 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, as applicable, or to the Knowledge of ParentParent and Merger Sub, any other parties thereto, under there is no fact or occurrence existing as of the Financing Letters or date of this Agreement that makes any of the assumptions or statements set forth in the Financing Commitment Letters inaccurate in any material respect. As of or that causes the date hereof, and subject Financing Commitment Letters to be ineffective or unavailable or that precludes the satisfaction of the conditions under Merger Sub’s control set forth in the Financing Commitment Letters. Assuming the accuracy of the representations and warranties set forth in Article VI 4 in all material respects and the compliance and performance by the Company of its obligations under covenants and agreements set forth in this Agreement in all material respects, based on the terms and conditions of this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to proceeds from the Financing contemplated in Financing, together with the Financing Letters will not be satisfied cash or that the Financing will not be made cash equivalents otherwise available to Parent and Merger Sub at or prior to the Closing Date. Sub, will provide Parent and Merger Sub have fully paid, or caused with sufficient funds to satisfy all of their obligations under this Agreement to be fully paidsatisfied on the Closing Date on the terms contemplated hereby, any and all commitment or other fees which are due and including (x) the payment of the amounts payable on or prior to the date hereof by Parent pursuant to Article 2 at the terms Closing, (y) the Payoff Amount and (z) the payment of the Financing Letters. Other than the Fee Letter all related fees and as set forth in Schedule 3.10(c), there expenses that are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments required to be made in, or contributions to be made to, paid by Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive at Closing pursuant to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither For the avoidance of doubt, the obligations of Parent nor and Merger Sub has caused or induced under this Agreement are not contingent in any Person to take any action that, if taken respect upon the funding of amounts contemplated by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Financing.
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Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereofMay 20, 2008, among Parent, Merger Sub Parent and the other parties thereto Regions Bank and Regions Business Capital Corporation (collectively, the “Equity Senior Debt Financing SourcesCommitment”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Regions Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, has agreed to lend the amounts set forth therein (the “Senior Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement, (ii) the commitment letter, dated as of May 20, 2008, among Parent and Apollo Investment Corporation (the “Mezzanine Debt Financing Commitment” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Senior Debt Financing Commitment, the “Debt Financing Commitments”), pursuant to which Apollo Investment Corporation has agreed to lend the amounts set forth therein (the “Mezzanine Debt Financing” and, together with the Senior Debt Financing, the “Debt Financing”) for the purpose of funding the transactions contemplated by this Agreement, and (iii) the equity commitment letter, dated as of May 22, 2008, between Parent and ▇▇▇▇▇▇ Brothers Merchant Banking Partners IV L.P. (the “Investor”) (the “Equity Financing Commitment” and together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which the Investor has committed to invest the amount set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Parent has also delivered to As of the Company a truedate of this Agreement, complete the Financing Commitments have not been amended or modified and correct copy of the commitments contained in the Financing Commitments have not been withdrawn or rescinded in any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) respect. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained Commitments in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so forms delivered to the Company on the date hereofCompany, are in full force and effect as and each of the date hereof. The Financing Letters are (i) them is a legal, valid and binding obligations obligation of the Parent and Merger Sub, as applicablethe case may be, subject to the respective terms and conditions contained therein and, to the Knowledge of Parent, each knowledge of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all As of the conditions precedent to the obligations date of the parties thereunder to make the Financing available to Parent on the terms therein and this Agreement, there are no other conditions precedent or other contingencies contingencies, side agreements or other agreements or understandings related to the funding of the full amount of the FinancingFinancing or the terms thereof, other than as set forth in the Financing Commitments and any fee letters and other documents (including any side letters) executed in connection with such Financing Commitments, in each case in the forms delivered to the Company; provided that (i) amounts set forth in the fee letters associated with the Debt Financing Commitments and (ii) any item in any side letter dealing solely with post-Closing matters have been redacted. As of the date of this Agreement, 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 neither the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that they will be unable to satisfy on a timely basis any term or condition to be satisfied by it contained in any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersCommitments.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
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Financing. (a) The aggregate amount Chicago has delivered to Houston true, complete and fully executed copies of funds contemplated an executed bridge commitment letter (including: (A) all exhibits, schedules, annexes and amendments to be provided pursuant such agreement in effect as of the date of this Agreement; and (B) any associated fee letter in redacted form, which redacted information does not relate to the amounts or conditionality of, or contain any conditions precedent to, the funding of the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to ) (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectivelytogether, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity FinancingEverett Commitment Letter”) and from The Bank of Tokyo-Mitsubishi UFJ, Ltd. (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc.or its designated affiliates), Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJAmerica, Ltd. N.A. and Goldman Sachs Bank USA. (the “Debt Commitment Letter” and, together with all additional lenders and financing sources added to the Equity Financing Everett Commitment Letter or any Alternative Everett Commitment Letter, the “Financing LettersLenders”), pursuant to which which, among other things, the lenders party thereto Lenders have committed, subject committed to the terms thereof, Chicago to lend the amounts set forth therein provide Chicago with debt financing in an aggregate amount of $3,055,000,000 (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) andbank and/or bond financings, together with the Equity Financingbridge loan commitments, in each case as contemplated by the Everett Commitment Letter, being referred to as the “Financing”). Parent has also delivered Prior to the Company a truedate of this Agreement, complete and correct copy of any fee letter in connection with (x) the Debt Everett Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have has not been amended amended, waived or modified modified, and none of (y) the respective obligations and commitments contained in the Financing Letters Everett Commitment Letter have not been withdrawn withdrawn, modified or rescinded in any respect. The Financing LettersExcept for the Everett Commitment Letter, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent side letters or other contingencies contracts, instruments or other commitments, obligations or arrangements (whether written or oral) related to the funding of the full amount of the Financing, other than as expressly set forth in the Everett Commitment Letter and delivered to Houston prior to the date of this Agreement.
(b) The Everett Commitment Letter, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of Chicago and, to the knowledge of Chicago, the other parties thereto. As of the date of this Agreement, no event has occurred or circumstance exists and on the Closing Date, no event shall have 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 Chicago under any term or Merger Sub, as applicable, or to condition of the Knowledge of ParentEverett Commitment Letter. Chicago has fully paid any and all commitment fees, any other parties thereto, fees or any other amounts required by the Everett Commitment Letter to be paid on or before the date of this Agreement and Chicago represents that any other fees or other amounts that are due under the Everett Commitment Letter or any related fee letters are, in each case, required to be paid no earlier than the Closing. The Financing Letters or that makes any will provide financing sufficient to refinance the full amount of the assumptions or statements Total Everett Debt and to pay all related fees and expenses associated therewith. Other than as set forth in the Financing Letters inaccurate in any material respect. As Everett Commitment Letter, there are no conditions precedent to the funding of the date hereof, and subject to the satisfaction full amount of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub Financing. Chicago has any no reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied on a timely basis or that the Financing will not be made available to Parent and Merger Sub at or Everett immediately prior to the Closing Distribution Date. Parent and Merger Sub have fully paid, or caused to The parties hereto agree that it shall not be fully paid, any and all commitment or other fees which are due and payable on or prior a condition to the date hereof pursuant Closing for Chicago to the terms of obtain the Financing Letters. Other than or the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersAlternative Financing.
(dc) As Upon the consummation of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement and the other than as set forth in the Financing Letters.
(e) As of the date hereofTransaction Documents, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or Chicago will not be insolvent; (ii) entered into an exclusivity, lock-up Chicago will not be left with unreasonably small capital; (iii) Chicago will not have incurred debts or other similar agreement, arrangement or binding understanding with any bank or investment bank Liabilities beyond its ability to pay such debts or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) Liabilities as they mature; and (ii), in connection with iv) the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would capital of Chicago will not be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)impaired.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy of the fully executed (i) the executed equity commitment letter letters dated March 12, 2023 from Silver Lake Partners VI DE (the AIV), L.P., Silver Lake Partners VII DE (AIV), L.P. and Silver Lake Strategic Investors VI, L.P. and CPP Investment Board (USRE V) Inc. (each an “Equity Financing LetterInvestor”), dated as of the date hereofand each such letter, among Parent, Merger Sub and the other parties thereto (collectively, the an “Equity Financing SourcesCommitment Letter”), pursuant to which the Equity Investors have agreed, subject to the terms and conditions thereof, to contribute or invest in Parent the respective amounts set forth therein (collectively, the “Equity Financing”); and (ii) commitment letter dated March 12, 2023 from the Debt Financing Sources party thereto pursuant to which such Debt Financing Sources have committed, upon the terms and subject only to the terms thereofexpress conditions set forth therein, to invest provide to Parent or Merger Sub debt financing in the cash aggregate principal amounts set forth therein for the purpose of funding a portion of the Required Amount (the “Equity Debt Financing”, which term shall include for the avoidance of doubt any replacement financing) (together with any fee letters related thereto (including all exhibits, schedules, and (ii) annexes thereto, and the executed commitment letterfee letters associated therewith (redacted in the manner set forth below)), dated collectively, the “Debt Commitment Letter”, and, together with the Equity Commitment Letters, the “Commitment Letters”). Each Equity Commitment Letter expressly provides that the Company is a third-party beneficiary thereof, and the Company is entitled to enforce, directly or indirectly, such Equity Commitment Letter in accordance with its terms against the applicable Equity Investors. The Debt Financing pursuant to the Debt Commitment Letter and the Equity Financing pursuant to the Equity Commitment Letters are collectively referred to in this Agreement as the “Financing.” Parent has delivered to the Company true, complete and correct copies of the executed Commitment Letters and any fee letters related thereto (with any fee letters related to the Debt Financing being subject to customary redactions of fee amounts, pricing caps and “market flex” related solely to economic terms, and in each case, which redacted information does not relate to or impact conditionality, enforceability or the amount or availability of the Debt Financing).
(b) Except as expressly set forth in the Commitment Letters delivered to the Company on or prior to the date hereof, there are no direct, indirect or other conditions precedent or other contingencies to the obligations of the Debt Financing Sources to fund the full principal amount of the Debt Financing in accordance with the express terms of the Debt Commitment Letter or to the obligations of the Equity Investors to fund the full amount of the Equity Financing in accordance with the terms of the applicable Equity Commitment Letter. Assuming satisfaction (or waiver in accordance with Section 10.11 or Section 10.12) of the conditions set forth in Section 8.01 and Section 8.02, as of the date hereof, from Credit Suisse Securities (USA) LLC, hereof neither Parent nor ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingSub has any reason to believe that it will be unable to satisfy any of the conditions to the Financing applicable to it in the Commitment Letters or that the Equity Investors and the Debt Financing Sources will not perform their obligations thereunder, Inc.in each case at, Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together prior to or concurrently with the Equity Financing Letter, Effective Time.
(c) Assuming the “Financing Letters”), pursuant to which satisfaction (or waiver in accordance with Section 10.11 or Section 10.12) of the lenders party thereto have committed, subject to the terms thereof, to lend the amounts conditions set forth therein (the “Debt Financing” (which term shall includein Section 8.01 and Section 8.02, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, when funded in full in accordance with the “Financing”). Parent has also Equity Commitment Letters delivered to the Company a trueon or prior to the date hereof, complete shall provide Merger Sub with immediately available cash prior to or concurrently with the Effective Time (after netting out applicable fees, expenses, original issue discount and correct copy of similar premiums and charges under the Equity Commitment Letters and any fee letter letters related thereto, in each case to the extent relevant) sufficient for Merger Sub and Parent to pay the aggregate Merger Consideration, any other amounts required to be paid in connection with the Debt Commitment Letter consummation of the Transactions (it being understood that including all amounts payable pursuant to Article III) and any such fee letter provided to fees, costs and expenses of or payable by Parent or Merger Sub in connection with the Company may be redacted to omit Transactions and the numerical amounts provided therein) Financing (any such fee lettercollectively, a the “Fee LetterRequired Amount”).
(cd) As of the date hereof, the Financing Letters have not been amended or modified and none each of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Commitment Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, Sub and, to the Knowledge of Parent, of each of the other parties thereto (subject, in the case of the Debt Commitment Letter, to the effect of any Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally) and (ii) enforceable in accordance with their respective terms against Parent full force and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyeffect. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no No event has occurred or circumstance exists whichthat, with or without notice, lapse of time time, or both, has, would or would reasonably be expected to (x) constitute a default or breach or a failure to satisfy a condition precedent on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, Sub under the Financing Letters or that makes terms and conditions of any of the assumptions Commitment Letters or statements set forth (y) result in any portion of the Financing being unavailable or materially delayed at the Effective Time or on the Closing Date. As of the date hereof, Parent is not aware of any fact, occurrence, or circumstance that makes, or with or without notice, lapse of time, or both, would make, or reasonably be expected to make, any of the assumptions, or the representations or warranties of Parent or Merger Sub, in any of the Commitment Letters inaccurate inaccurate, incomplete or misleading in any material respect. As of the date hereof, and subject no Debt Financing Source has notified Parent or Merger Sub of its intention to terminate its commitment under the satisfaction Debt Commitment Letter, or not to provide any portion of the conditions set forth in Article VI Debt Financing, and the performance by the Company no Equity Investor has notified Parent or Merger Sub of its obligations intention to terminate its commitment under this Agreement, neither the applicable Equity Commitment Letter or not to provide any portion of the Equity Financing. Parent nor or Merger Sub has paid, or caused to be paid, in full any reason and all commitment fees or other fees required to believe that any be paid pursuant to the terms of the conditions Commitment Letters on or before the date of this Agreement and will have paid in full any amounts under the Commitment Letters that are due at or prior to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent Effective Time and Merger Sub at on or prior to the Closing Date. Parent 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 As of the date hereof pursuant to the terms hereof, none of the Financing LettersCommitment Letters have been modified, amended, restated, supplemented or otherwise altered, and none of the commitments under any of the Commitment Letters have been withdrawn, terminated, amended, modified, repudiated or rescinded in any respect. Other than the Fee Letter and as set forth in Schedule 3.10(c), there There are no other fee letters, engagement letters, side letters or other agreements, Contracts or arrangements to which Parent Parent, Merger Sub or any of its their respective Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in that could affect the availability or conditionality of the Financing Lettersin any respect.
(de) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter has entered into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreementContract, arrangement or binding understanding with prohibiting or seeking to prohibit any bank or bank, investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such debt financing or financial advisory services any other financing to any third party person in connection with a transaction relating to the Company or its any of the Company Subsidiaries (including in connection with the making Merger.
(f) As of any Alternative Transaction Proposal)the Effective Time, in Parent and Merger Sub shall have cash and other immediately available funds sufficient to consummate the case Merger, pay the Required Amount and satisfy all of clauses (i) Parent’s and (ii), in connection with the Merger or the other transactions contemplated by Sub’s obligations under this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Buyer has delivered to the Company (i) a true, correct true and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”attached hereto as Schedule 3.4(i), dated as among the Buyer, Banc of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse America Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingGE Capital Markets, Inc., Royal UBS Securities LLC, UBS Loan Finance LLC, CIBC World Markets Corp., CIBC Inc., Bank of CanadaAmerica, RBC N.A., Banc of America Bridge LLC, General Electric Capital MarketsCorporation, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. as the same may be amended pursuant to Section 5.7 (the “Debt Financing Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), 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 Financing Commitment Letter”, and together with the Debt Financing Commitment Letter, the ”Financing Commitment Letters”), pursuant to which Lightyear Fund II, L.P. has committed, subject to the terms thereofand conditions set forth therein, to lend invest the amounts amount set forth therein (the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As None of the date hereof, the Financing Commitment Letters have not has been amended or modified and none prior to the date of this Agreement, no such amendment or modification is contemplated or will be undertaken except as permitted pursuant to Section 5.7 and, as of the date of the Agreement, the respective obligations and commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any material respect. The Buyer and Merger Sub have fully paid any and all commitment fees or other fees in connection with the Debt Financing Letters, in the form so delivered Commitment Letters that are payable on or prior to the Company on date hereof and, as of the date hereofof this Agreement, the Debt Financing Commitment Letters are in full force and effect as of the date hereof. The Financing Letters and are (i) legalvalid, valid binding and binding enforceable obligations of Parent and Merger Sub, as applicable, Buyer and, to the Knowledge knowledge of ParentBuyer, each of the other parties party thereto and (ii) enforceable so long as they remain 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyeffect. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of any or all of the full amount of the Financing, other than as set forth in the Financing Commitment Letters. As of the date of this Agreement, to the knowledge of the Buyer, 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 the Buyer or Merger Sub, as applicable, or Sub under any of the Financing Commitment Letters. After giving effect to the Knowledge of Parent, any other parties thereto, amounts expected to be funded under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereofCommitment Letters, and subject to the satisfaction of the conditions set forth in Article VI and the performance assuming compliance by the Company of with its obligations under this Agreementhereunder, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent Buyer and Merger Sub will have at or prior the Effective Time, together with the Company’s cash on hand, funds sufficient to pay the Closing Date. Parent Merger Consideration and all costs, fees and expenses for which the Buyer and Merger Sub have fully paid(including, or caused without limitation, pursuant to Section 5.14) are responsible and any other amounts required 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub paid in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As consummation of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (Neff Rental LLC)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy of (i) the a fully executed commitment letter from the Financing Sources (including all exhibits, schedules, and annexes to such letters as and to the “Equity Financing Letter”), dated as of extent delivered to the Company on or prior to the date hereof, among Parent, Merger Sub and the other parties thereto (collectivelyof this Agreement, the “Equity Financing Sources“ Debt Commitment Letter ”), pursuant to which the Equity Financing Sources have committed, upon the terms and subject to the terms thereofconditions set forth therein, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of provide the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter financing described therein in connection with the transactions contemplated hereby. The Debt Commitment Letter and any other debt commitment letter (it being understood that 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 fee letter provided letters, are hereinafter referred to together as the “ Debt Commitment Letters ”. The financing contemplated pursuant to the Company may be redacted Debt Commitment Letters is hereinafter referred to omit as the numerical amounts provided therein) (any such fee letter, a “Fee Letter“ Debt Financing ”).
(cb) As of the date hereofof this Agreement, the Financing Debt Commitment Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding obligations of Parent Parent, and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto thereto, and (ii) enforceable in accordance with their respective terms against Parent Parent, and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, each of the other parties thereto, subject to the Bankruptcy and Equity Exceptions. All commitment fees required to be paid under the Debt Commitment Letters have been paid in each case except full or will be duly paid in full as such enforceability may be limited by applicable bankruptcyand when due, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters Parent and the Fee Letter contain Merger Sub have otherwise satisfied all of the other items and conditions precedent required to be satisfied by them, and within their control, pursuant to the obligations terms of the parties thereunder to make the Financing available to Parent Debt Commitment Letters on the terms therein and there are no other conditions precedent or other contingencies related prior to the funding date of this Agreement. None of the full amount Debt Commitment Letters have been amended, modified or terminated on or prior to the date of the Financingthis Agreement, and no Debt Commitment Letter will be amended, modified or terminated by Parent or Merger Sub except as consistent with Section 7.06 . As of the date of this Agreement, assuming the accuracy of the Company’s representations and warranties set forth in this Agreement, 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 breach or default by Parent or breach on the part Merger Sub under any Debt Commitment Letter. None of Parent or Merger SubSub is, as applicableof the date of this Agreement, aware of any fact, occurrence or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or condition that makes any of the assumptions representations or statements 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 inaccurate 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, there are no side letters or other agreements, contracts or arrangements to which Parent or Merger Sub or any material respectof their respective Affiliates are a party related to the funding of the Debt Financing, other than as expressly set forth in the Debt Commitment Letters delivered to the Company on or prior to the date of this Agreement. As of the date hereofof this Agreement, assuming no breach by the Company of its representations and subject to warranties under this Agreement (and cooperation and assistance by the satisfaction Company as required by the terms of the conditions set forth in Article VI this Agreement) and the performance 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 as of the date of this Agreement, neither none of Parent nor or Merger Sub has have any reason to believe that any of the conditions to the Debt Financing contemplated in the Financing Letters will not be satisfied or that the Debt Financing will not be made available to Parent and or Merger Sub at 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 Merger Sub have fully paid, or caused the other sources of funds referenced in the copies of the Debt Commitment Letters delivered to be fully paid, any and all commitment or other fees which are due and payable the Company on or prior to the date hereof pursuant to the terms of this Agreement, as of the Financing Letters. Other than the Fee Letter and as set forth Effective Time, will be sufficient to enable Parent to pay in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments cash all amounts required to be made in, or contributions to be made to, Parent or Merger Sub paid by it in cash in connection with the Merger and/or any other transactions contemplated hereby, including the Merger Consideration and all payments, fees and expenses payable by this Agreement other than as set forth in the Financing Letters.
(e) As it related to or arising out of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which consummation of the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letters, dated as of the date hereof, among Parent, Merger Sub Deutsche Bank Securities Inc., Deutsche Bank AG New York Branch, Wachovia Capital Markets, LLC, Wachovia Bank, National Association and the other parties thereto Wachovia Investment Holdings, LLC (collectively, the “Equity Debt Financing SourcesCommitments”), pursuant to which the lenders party thereto committed, subject to the terms thereof, to lend the debt amounts set forth therein (the “Debt Financing”), and (ii) the executed equity commitment letters, dated as of the date hereof, from affiliates of Fortress Investment Group LLC and Centerbridge Partners, L.P. (collectively, (the “Equity Financing Sources Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which such parties have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of the date hereof. The Financing Letters effect, are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge knowledge of Parent, the other parties thereto, and the Company is a third party beneficiary of the Equity Financing Commitments. Under the Equity Financing Commitments, each of the other parties thereto has guaranteed to the Company the payment of certain obligations specified therein (the “Limited Guarantee Provisions”). The Limited Guarantee Provisions are in full force and effect and are legal, valid and binding obligations of the parties thereto and (ii) are enforceable in accordance with their respective terms against Parent by the parties thereto and Merger Sub, by the Company as applicable, and, to the Knowledge of Parent, each a third party beneficiary thereof. None of the other parties theretoFinancing Commitments has been or will be amended or modified, in each case except as such enforceability may be limited by applicable bankruptcyconsistent with Section 7.9(c), insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect as 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 precedent or other contingencies related to the funding of the full amount of the Financingdate hereof. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, Sub under any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, Commitment and subject to the satisfaction of the conditions set forth in Article VI Sections 8.1 and the performance by the Company of its obligations under this Agreement8.2 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 conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at Commitments on or prior to the Closing Date. The funds contemplated to be provided by the Financing Commitments would be sufficient to enable Parent and 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 have fully paid, or caused to be fully paid, any the Surviving Corporation in connection with the Merger (including the repurchase or repayment of outstanding indebtedness of the Surviving Corporation) and all commitment of the related fees and expenses. There are no conditions precedent or other fees which are due and payable on or prior contingencies to the date hereof pursuant to the terms funding of the Financing Letters. Other other than the Fee Letter and as set forth in Schedule 3.10(c), there the Financing Commitments. There are no side letters or other Contracts to which Parent agreements, contracts or any of its Affiliates is a party arrangements related to the funding or investing, as applicable, of the full amount of the Debt Financing other than as expressly set forth in the Debt Financing Letters.
(d) Commitments and delivered to the Company prior to the date hereof. As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection has fully paid, or caused to be fully paid, any and all commitment fees which are due and payable with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating respect to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Debt Financing Commitments.
Appears in 1 contract
Financing. Parent has delivered to the Partnership true and complete copies, as of the date of this Agreement, of (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the an executed commitment letter dated on or about the date hereof (together with all exhibits, annexes, schedules and term sheets attached thereto, the “Equity Financing Letter”), dated as of ) from the date hereof, among Fund providing for an equity investment in Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereofand conditions therein, to invest in cash in the cash amounts aggregate amount set forth therein (the “Equity Financing”) and (iib) the an executed commitment letter, letter dated as of on or about the date hereofhereof (together with all exhibits, from Credit Suisse Securities (USA) LLCannexes, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingschedules and term sheets attached thereto, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend debt financing on the amounts Closing Date in the aggregate principal amount set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no event Financing Letter has occurred been amended or circumstance exists whichmodified, no such amendment or modification is contemplated (other than 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, as applicable, or respect to the Knowledge potential addition of Parentadditional arrangers or other commitment parties thereunder), any other parties thereto, under the Financing Letters or that makes any none of the assumptions or statements set forth in the Financing Letters inaccurate obligations and commitments contained in any material respect. As of the date hereofsuch letter have been withdrawn, terminated or rescinded in any respect and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreementno such withdrawal, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied termination or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Daterescission is contemplated. Parent and Merger Sub have has fully paid, or caused to be fully paid, any and all commitment fees or other fees which in connection with the Financing that are due and payable on or prior to the date hereof pursuant to of this Agreement. Assuming (i) the terms of Financing is funded in accordance with the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party the accuracy in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any all material respects of the representations in this Section 3.10(e).and warranties set forth in
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated Parent is a party to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the has accepted fully executed commitment letter (the “Equity Financing Letter”), letters dated as of the date hereof, among Parent, Merger Sub hereof (together with all exhibits and the other parties thereto (collectivelyschedules thereto, the “Equity Debt Commitment Letters”) from the Debt Financing Sources”), Entities pursuant to which the Equity such Debt Financing Sources Entities have committed, subject to the terms and conditions thereof, to invest provide debt financing in the cash amounts set forth therein (therein. The debt financing committed pursuant to the Debt Commitment Letters is collectively referred to in this Agreement as the “Equity Debt Financing.”
(b) Parent is a party to and (ii) the has accepted a fully executed equity commitment letter, dated as of the date hereofof this Agreement, from Credit Suisse Securities by and among Apollo Investment Fund X, L.P., Apollo Overseas Partners (USADelaware) LLCX, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior FundingL.P., Inc.Apollo Overseas Partners (Delaware 892) X, Royal Bank of CanadaL.P., RBC Capital MarketsApollo Overseas Partners X, SunTrust BankL.P, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇Apollo Overseas Partners (Lux) X, Inc.SCSp and Platinum Falcon B 2018 RSC Limited (collectively, the “Equity Investors”) and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. Parent (the “Debt Equity Commitment Letter” and, together with the Equity Financing LetterDebt Commitment Letters, the “Financing Commitment Letters”), pursuant to which which, on the lenders party thereto have committed, terms and subject to the terms thereof, to lend the amounts conditions set forth therein (therein, the Equity Investors have agreed to invest in Parent the amount set forth therein. The equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Debt Equity Financing.” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under The Equity Financing and the Debt Commitment Letter) and, together with the Equity Financing, Financing are collectively referred to as the “Financing”). .” The Equity Commitment Letter provides that the Company is an express third-party beneficiary of, and entitled to enforce, the Equity Commitment Letter.
(c) Parent has also delivered to the Company a true, complete and correct copy of the executed Commitment Letters and any executed fee letter in connection with the Debt Commitment Letter (it being understood that any such letters, engagement letters and fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee lettercredit letters related thereto, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letterssubject, in the form so delivered case of such fee letters, engagement letters and fee credit letters, to redaction solely of fee amounts, “market flex” provisions, terms of “securities demand” provisions, pricing terms and pricing caps and other terms that are customarily redacted (including any dates related thereto) (none of which could adversely affect the Company on the date hereofconditionality, are in full force and effect as enforceability, availability or termination of the date hereof. The Debt Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to or reduce the Knowledge of Parent, each aggregate principal amount of the other parties thereto and Debt Financing below the amount required to pay the Merger Amounts (iiafter taking into account any available Equity Financing)).
(d) enforceable Except as expressly set forth in accordance with their respective terms against Parent and Merger Subthe Commitment Letters, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the there are no conditions precedent to the obligations of the parties thereunder Debt Financing Entities and the Equity Investors to make provide the Financing available or any contingencies that would permit the Debt Financing Entities or the Equity Investors to Parent on reduce the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full aggregate principal amount of the FinancingFinancing below the amount required to pay the Merger Amounts, including any condition or other contingency relating to the amount or availability of the Financing pursuant to any “flex” provision. As of the date of this Agreement and assuming the conditions set forth in Section 6.1 and Section 6.3 have been satisfied (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time) or waived by the Closing, Parent does not have any reason to believe that it will be unable to satisfy on a timely basis all terms and conditions required to be satisfied by it in any of the Commitment Letters on or prior to the Closing Date, nor does Parent have Knowledge that any Debt Financing Entity or Equity Investor will not perform its obligations thereunder. As of the date of this Agreement, there are no side letters, agreements or other Contracts of any kind to which Parent is a party relating to the Commitment Letters or the Financing that could (i) adversely affect the conditionality or enforceability of, or termination rights under, the Commitment Letters or the availability of the Financing or (ii) reduce the aggregate amount of the Financing below the amount required to pay the Merger Amount, other than as expressly contained in the Commitment Letters and delivered to the Company prior to the execution and delivery of this Agreement.
(e) Assuming that the conditions set forth in Section 6.1 and Section 6.3 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) have been satisfied or waived, the aggregate proceeds contemplated by the Commitment Letters (including after giving effect to any “flex” provision in or related to the Debt Commitment Letters (including with respect to fees and original issue discount)) shall provide Parent with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement and under the Commitment Letters, including payment of (i) the Merger Consideration, (ii) any fees and expenses of or payable by Parent or Merger Sub or the Surviving Corporation on the Closing Date and (iii) all amounts in respect of the repayment, redemption and refinancing of all outstanding indebtedness of Parent, the Company and their respective Subsidiaries required in connection with or pursuant to the transactions described in this Agreement or the Commitment Letters (such amounts, collectively, the “Merger Amounts”).
(f) As of the date hereof, the Commitment Letters are in full force and effect and constitute the legal, valid, binding and enforceable obligations of Parent and, to the Knowledge of Parent, all the other parties thereto. As of the date hereof, neither Parent nor Merger Sub is in breach of any terms or conditions set forth in the Commitment Letters and, to the Knowledge of Parent, no event has occurred or circumstance exists which, 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, as applicable) constitutes, or could constitute, a default, breach or failure to the Knowledge of Parent, any other parties thereto, satisfy a condition by Parent under the Financing Letters or that makes any terms and conditions of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing DateCommitment Letters. Parent and Merger Sub have fully paid, or caused to be fully paid, has paid in full any and all commitment fees or other fees which are due and payable required to be paid on or prior to the date hereof pursuant to the terms of the Financing LettersCommitment Letters on or before the date of this Agreement. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, the Commitment Letters have not been modified, amended or altered and none of the respective commitments under any of the Commitment Letters have been terminated, reduced, withdrawn or rescinded in any respect, and, to the Knowledge of Parent, no termination, reduction, withdrawal, modification, amendment, alteration or rescission thereof is contemplated (other than to add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed the Debt Commitment Letters as of the date of this Agreement, but solely to the extent that such addition would not effect a Prohibited Modification).
(g) In no event shall the receipt or availability of any funds or financing (including the Financing) by Parent, Merger Sub or any of their respective Affiliates is or any other financing be a party condition to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent Parent’s or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in ’s obligations under this Section 3.10(e)Agreement.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy of (i) the an executed commitment letter among Parent and Bank of America, N.A. (including any related exhibits, schedules, annexes, supplements and other related documents), dated on or about the date of this Agreement (as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with this Agreement, the “Equity Debt Financing LetterCommitment”), dated as from each of the date hereoffinancing sources identified therein (such financing sources, among Parenttogether with any agent, Merger Sub arranger, lender, underwriter, initial purchaser, placement agent or other entity that has committed to provide, arrange, underwrite or place, or has entered into definitive agreements related to, the Debt Financing, including the parties to any commitment letters, engagement letters, joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto, together with their respective affiliates and the other parties thereto (their respective officers, directors, employees, agents, representatives and their respective successors or permitted assigns, in each case solely in their respective capacities as such, collectively, the “Equity Debt Financing SourcesParties”), pursuant to which the Equity Debt Financing Sources Parties have committed, subject to the terms and conditions thereof, to invest provide debt financing in the cash amounts set forth or contemplated therein for the purpose of funding the transactions contemplated by this Agreement (collectively, the “Debt Financing”), together with a fee letter (which may include redaction solely in respect of the fee amounts, pricing, “price-flex” and other economic provisions that could not reasonably be expected to adversely affect the conditionality, enforceability, availability or aggregate principal amount of the Debt Financing) from the Debt Financing Parties related to the Debt Financing (the “Equity FinancingFee Letter”) and (ii) the executed commitment letter, dated as ). As of the date hereof, from Credit Suisse Securities (USA) LLCother than the Debt Financing Commitment and the Fee Letter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingthere are no other Contracts between any of the Debt Financing Parties, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.on the one hand, and The Bank Parent and any of Tokyo-Mitsubishi-UFJits subsidiaries, Ltd. (on the “Debt Commitment Letter” andother hand, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject respect to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(cii) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies (including pursuant to any “flex” provisions) related to the funding of the full amount of the FinancingDebt Financing pursuant to the Debt Financing Commitment, other than as expressly set forth in the Debt Financing Commitment. Assuming the Debt Financing is funded in accordance with the Debt Financing Commitment, the net proceeds contemplated by the Debt Financing Commitment, together with other financial resources of Parent, whether directly held or available for use by Parent and its subsidiaries, including cash on hand at the Company on or after the Closing Date (whether directly held or available for use by the Company and its subsidiaries), in the aggregate, shall provide Parent and Merger Sub with cash proceeds on the Closing Date sufficient for the satisfaction of all of Parent’s and Merger Sub’s payment obligations under this Agreement, including the payment of any amounts required to be paid pursuant to Article II, any fees and expenses of or payable by Parent, Merger Sub, or the Surviving Corporation in connection with the Merger and the Debt Financing and any indebtedness required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied in connection with the Merger (including all indebtedness of the Company required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied in connection with the Merger). Parent acknowledges that its obligations under this Agreement are not conditioned upon or subject to its receipt of the proceeds made available under the Debt Financing Commitment or any other financing (such obligations being subject only to the satisfaction of the conditions set forth in Sections 6.01 and 6.03).
(iii) As of the date of this Agreement, the Debt Financing Commitment is in full force and effect and constitutes the valid and binding obligation of Parent and, to the knowledge of Parent, each other party thereto, enforceable in accordance with their terms against Parent and, to the knowledge of Parent, each other party thereto (except as such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws, now or hereafter in effect, relating to creditors’ rights generally, and general equitable principles). As of the date hereof, (A) neither the Debt Financing Commitment nor the Fee Letter has been modified, amended or otherwise altered (and no such modification, amendment or alteration is contemplated by Parent or, to the knowledge of Parent, any other party thereto except as may be contemplated to add lenders, lend arrangers or similar entities that have not executed the Debt Financing Commitment as of the date hereof), (B) 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 under any term or Merger Subcondition of the Debt Financing Commitment, as applicableand (C) none of the respective commitments under any of the Debt Financing Commitment have been withdrawn, terminated or rescinded (and no such withdrawal, termination or rescission is contemplated by Parent or, to the Knowledge knowledge of Parent, any other parties party thereto). As of the date of this Agreement and assuming the accuracy of the representations and warranties made by the Company in Section 3.01, under the Financing Letters Parent (x) is not aware of any fact or occurrence that makes any of the assumptions representations or statements set forth warranties of Parent in the Debt Financing Letters Commitment inaccurate in any material respect. As , (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 subsidiaries in the date hereofDebt Financing Commitment, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub (z) has any no reason to believe that any portion of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Debt Financing will not be made available to Parent and Merger Sub at or prior to on the Closing Date. As of the date of this Agreement, Parent and Merger Sub have has fully paid, or caused to be fully paid, paid any and all commitment fees or other fees which are due and payable required by the Debt Financing Commitment to be paid by it on or prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter this Agreement, and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth will in the Financing Lettersfuture pay any such fees as they become due.
(div) As Assuming (i) satisfaction of the date hereof, none of conditions to Parent, ’s obligation to consummate the Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person and (including any Company Stockholder, director, officer or employee ii) the payment of the aggregate Merger Consideration payable to the holders of Company or its Subsidiaries) concerning any investments Common Stock and equity awards pursuant to Article II, payment of all amounts required to be made in, or contributions to be made to, Parent or Merger Sub paid in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As consummation of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by hereby, and payment of all related fees and expenses, Parent and its subsidiaries on a consolidated basis will be Solvent as of the Effective Time, and, in each case, immediately after the consummation of the transactions contemplated hereby. For the purposes of this Agreement. Neither Parent nor Merger Sub has caused or induced , the term “Solvent” when used with respect to any Person to take any action person, means that, if taken by Parent as of any date of determination (a) the amount of the “fair saleable value” of the assets of such person will, as of such date, exceed (i) the value of all “liabilities of such person, including contingent and other liabilities,” as of such date, as such quoted terms are generally determined in accordance with applicable laws governing determinations of the insolvency of debtors, and (ii) the amount that will be required to pay the probable liabilities of such person on its existing debts (including contingent and other liabilities) as such debts become absolute and mature, (b) such person will not have, as of such date, an unreasonably small amount of capital for the operation of the businesses in which it is engaged or Merger Subproposed to be engaged following such date, would and (c) such person will be a breach ofable to pay its liabilities, including contingent and other liabilities, as they mature. For purposes of this definition of “Solvent”, “not have an unreasonably small amount of capital for the operation of the businesses in which it is engaged or proposed to be engaged” and “able to pay its liabilities, including contingent and other liabilities, as they mature” means that such person will be able to generate enough cash from operations, asset dispositions or refinancing, or would cause a combination thereof, to be untrue, any of the representations in this Section 3.10(e)meet its obligations as they become due.
Appears in 1 contract
Sources: Merger Agreement (Finisar Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letters, dated as of the date hereof, among Parent, Merger Sub Parent and each of the other parties thereto Guarantors and GS Investors (collectively, the “"Equity Financing Sources”Commitment Letters"), pursuant to which the Equity Financing Sources Guarantors and GS Investors have committed, subject to the terms and conditions thereof, to invest in Parent the cash amounts and, in the case of P2 Capital Master Fund I, L.P., cash amounts and a certain specified number of shares of Common Stock, in each case, as set forth therein (the “"Equity Financing”) "), and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇among ▇▇▇▇▇▇▇ ▇▇▇▇▇ Lending Partners LLC, ▇▇▇▇▇▇▇ Lynch, Inc.Pierce, and The ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Bank of Tokyo-Mitsubishi-UFJAmerica, Ltd. N.A. and Merger Sub (the “"Debt Commitment Letter” and", together with the Equity Financing LetterCommitment Letters, the “"Financing Letters”"), pursuant to which the lenders party counterparties thereto have committed, subject to the terms and conditions thereof, to lend the amounts set forth therein (the “"Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) " and, together with the Equity Financing, the “"Financing”"). Parent has also delivered .
(b) Assuming the accuracy of the representations and warranties of the Company in this Agreement as of the Closing Date and the performance by the Company of its obligations hereunder, the amount of funds to be provided pursuant to the Financing Letters, if funded in accordance with the terms of the Financing Letters, including the combination of funds expected to be available for borrowing under the New ABL Facility and any Available Cash of the Company a trueand its subsidiaries as of the Closing Date, complete will be sufficient to (i) pay the aggregate Per Share Merger Consideration to all holders of Shares (other than any Share owned by the Company or by Parent or Merger Sub), including the amounts payable pursuant to Section 2.8, (ii) repay the principal and correct copy interest on all indebtedness outstanding under the Existing ABL Facility and to pay any amounts required to be paid to holders of the Existing Notes pursuant to the Consent, the Exit Consent Tender Offer or the Change of Control Offer (each as defined in the Debt Commitment Letter), (iii) pay any fee letter and all fees and expenses required to be paid at the Closing by Parent, Merger Sub or the Surviving Corporation, in connection with the Debt Commitment Letter Merger and the Financing and (it being understood that iv) any such fee letter provided other amounts required to be paid in connection with the Company may be redacted to omit consummation of the numerical transactions contemplated by this Agreement (collectively, the amounts provided thereindescribed in clauses (i) through (any such fee letteriv), a “Fee Letter”the "Financing Uses").
(c) As of the date hereof, the Financing Letters are in full force and effect. Other than as set forth in the Financing Letters and any fee letter (a "Fee Letter" and, together with the Debt Commitment Letter, the "Debt Financing Letters"), a copy of which has been provided to the Company prior to the date hereof (except that only the fee amounts, consent fees, price caps (including price caps in any securities demand provisions) and economic "flex" provisions set forth therein have not been amended or modified and none redacted), there are no conditions precedent related to the funding of the respective obligations and commitments full net amount of the Financing that would, or would reasonably be expected to, (i) impair the validity of the Financing Letters, (ii) reduce the aggregate amount of the Financing, (iii) prevent or materially delay the Closing, (iv) cause either of the Financing Letters to be ineffective or (v) otherwise result in the Financing not being available on a timely basis in order to consummate the transactions contemplated by this Agreement. As of the date hereof, Parent has not amended, modified, supplemented or waived any of the conditions or contingencies to funding contained in the Financing Letters have been withdrawn (including definitive agreements related thereto) or rescinded in any respectother provision of, or remedies under, the Financing Letters (including definitive agreements related thereto). The Financing Letters, in the form so delivered to the Company on As of the date hereof, are in full force and effect as neither the Guarantors, the GS Investors nor any Financing Source has notified Parent or Merger Sub of its intention to terminate either of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, or not to provide the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyFinancing. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing or the conditions precedent thereto, other than as set forth in the Financing Letters (the "Disclosed Conditions"). Other than the Disclosed Conditions, no Financing Source or other Person has any right to impose, and none of the Guarantors, the GS Investors, Parent, Merger Sub, the Company or any subsidiary obligor have any obligation to accept, any condition precedent to such funding nor any reduction to the aggregate amount available under the Financing Letters on the Closing Date or, in the case of the Opco Bridge Facility, the amount available thereunder to fund payments under any Exit Consent Tender Offer or any Change of Control Offer, as applicable (nor any term or condition which would have the effect of reducing the aggregate amount available under the Financing Letters on the Closing Date or, in the case of the Opco Bridge Facility, the amount available thereunder to fund payments under any Exit Consent Tender Offer or any Change of Control Offer, as applicable). Neither Parent nor Merger Sub has any reason to believe that it will be unable to satisfy on a timely basis any conditions to the funding of the full amount of the Financing, or that the Financing will not be available to Parent or Merger Sub on the Closing Date (subject in each case to all other parties to the Financing Letters and this Agreement complying in all material respects with their applicable obligations thereunder and hereunder). 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 or Merger SubSub or, as applicable, or to the Knowledge of Parent, any of the other parties thereto, under the Financing Letters Letters, other than any such default or breach that makes any has been waived by the Guarantors, the GS Investors, Merger Sub or the Financing Sources, as the case may be, or otherwise cured in a timely manner by Parent or Merger Sub to the reasonable satisfaction of the assumptions Guarantors, the GS Investors, or statements set forth in the Financing Letters inaccurate in any material respectSources, as the case may be. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has nor any reason Affiliate thereof is a party to believe any side letters or other Contracts related to and that any could affect the availability of the conditions to the Financing contemplated in other than the Financing Letters will not be satisfied or that and any Fee Letter, in each case, delivered to the Financing will not be made available to Parent and Merger Sub at or Company prior to the Closing Datedate hereof. As of the date hereof, Parent 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 terms of the Financing Letters. Other than Letters and the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersLetter.
(d) As of the date hereof, none of Neither Parent, Merger Sub or nor any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or and/or Merger Sub other than advisors to which the Company Board (or and/or any authorized committee thereof) has previously consented such Affiliate, or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits would prevent or hinder such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal)Subsidiaries, in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Parent, Merger Sub nor any of their Affiliates has caused or induced any Person to take any action that, if taken by Parent or and/or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e4.8(d).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the executed commitment letter Commitment Letter dated May 15, 2011 between Parent and KeyBank National Association (the “Equity Financing "Loan Commitment Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”"), pursuant to which KeyBank National Association has agreed, upon the Equity Financing Sources have committed, terms and subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms conditions thereof, to lend 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 and (ii) the Commitment Letter dated May 15, 2011 among Parent, ▇▇▇▇▇▇▇▇▇ Group, Inc. and Key Capital Corporation (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt "Notes Commitment Letter) and, "; together with the Equity FinancingLoan Commitment Letter, the “"Commitment Letters"), pursuant to which ▇▇▇▇▇▇▇▇▇ Group, Inc. and Key Capital Corporation (Key Bank National Association, ▇▇▇▇▇▇▇▇▇ Group, Inc. and Key Capital Corporation are collectively referred to as the "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”"). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt The Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified prior to the date of this Agreement, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Financing Commitment Letters have not been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered Except for (i) a fee letter relating to fees with respect to the Company on 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 has fully paid any and all commitment fees or other fees in connection with the Debt Financing that are payable on or prior to the date hereof, and, as of the date hereof, the Commitment Letters are in full force and effect as of the date hereofeffect. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing, other than as expressly set forth in the Commitment Letters. 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 or Parent, Merger Sub, as applicableMerger LLC or, or to the Knowledge knowledge of Parent, any other parties thereto, party thereto under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectCommitment Letters. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Debt Financing will not be made available to Parent satisfied. Parent, Merger Sub and Merger Sub LLC will have at or prior to and after the Closing Date. Parent funds sufficient to (i) pay the aggregate amount of Merger Consideration payable to holders of Company Shares, Company Stock Options and Merger Sub have fully paidCompany Restricted Shares pursuant to Sections 2.1 and 2.2, or caused to be fully paid, (ii) pay any and all commitment or other fees which are due and payable on or prior expenses required to be paid by Parent, Merger Sub, Merger LLC, the date hereof pursuant to Surviving Corporation and the terms Surviving Company in connection with the Merger, the LLC Merger and the Debt Financing, (iii) pay for any refinancing of any outstanding indebtedness of the Financing Letters. Other than Company contemplated by the Fee Letter Commitment Letters and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related to the funding or investing, as applicable, (iv) satisfy all of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none payment obligations of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach ofMerger LLC, or would cause to be untrue, any of the representations in this Section 3.10(e)Surviving Corporation and the Surviving Company contemplated hereunder.
Appears in 1 contract
Sources: Merger Agreement (Kratos Defense & Security Solutions, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Purchaser has delivered to the Company Corporation a true, correct complete and complete accurate copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLCamong the Purchaser and each of the Debt Financing Sources, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingincluding all exhibits, Inc.annexes, Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.schedules and term sheets attached thereto, and The Bank any fee letter relating thereto (in each case, redacted as to rates, fees, monetary thresholds, other economic terms (other than amount of Tokyo-Mitsubishi-UFJfacility and conditions precedent), Ltd. "market flex" and other customarily redacted terms redacted) (as amended, restated, amended and restated, supplemented and/or otherwise modified from time to time after the “date hereof in compliance with Section 4.13, the "Debt Commitment Letter” "), pursuant to which each Debt Financing Source party thereto has committed to lend, subject to the terms and conditions set forth therein, the amounts set forth therein to the Purchaser (the "Debt Financing").
(b) The Purchaser has delivered to the Corporation, a true, complete and accurate copy of the executed commitment letter, dated as of the date hereof, among the Purchaser and each of the Equity Financing Sources (as amended from time to time after the date hereof in compliance with Section 4.13, the "Equity Commitment Letter" and, together with the Equity Financing Debt Commitment Letter, the “"Financing Letters”Commitments"), pursuant to which the lenders each Equity Financing Source party thereto have has committed, subject to the terms thereofand conditions set forth therein, to lend invest in the Purchaser the cash amounts set forth therein (the “Debt "Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) " and, together with the Equity Debt Financing, the “"Financing”"). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(c) As of the date hereofof this Agreement, (i) none of the Financing Letters Commitments have not been amended or modified and none modified, (ii) no such amendment or modification is contemplated (other than, for greater certainty, with respect to the modifications to reflect the internal reorganization of Plusgrade L.P. as set forth in Appendix A to Exhibit A of the Debt Commitment Letter), and (iii) the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn withdrawn, terminated, reduced or rescinded in any respect. The Except for any fee letter referred to above (a true, complete and accurate executed copy of which has been provided to the Corporation, with only rates, fees, "market flex", provisions related to economics and other customarily redacted terms redacted) and customary engagement letters and fee credit letters with respect to the Debt Financing Letters(none of which (and none of the redacted terms in respect of which) (i) reduces the amount of Debt Financing below the amount required to satisfy the Required Amount (after taking into consideration the amount of the Equity Financing and available cash at the Corporation and its Subsidiaries), (ii) imposes any new condition or otherwise adversely amends, modifies or expands any conditions precedent to the Debt Financing or (iii) materially affects, delays or impedes the availability or enforceability of the Financing), there are no side letters or other contracts or arrangements to which the Purchaser or any of its affiliates is a party related to the funding of the Financing, other than as expressly contained in the form so Financing Commitments delivered to the Company Corporation on or prior to the date of this Agreement. The Purchaser has fully paid, or caused to be paid, any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof and will pay, or caused to be paid, in full any such amounts due at or prior to the Effective Time as and when payable in accordance with the Financing Commitments. As of the date hereof, are each of the Financing Commitments, in the forms so delivered, is in full force and effect as of the date hereof. The Financing Letters are (i) hereof and is a legal, valid valid, binding and binding obligations enforceable obligation of Parent and Merger Sub, as applicable, andthe Purchaser, to the Knowledge knowledge of Parentthe Purchaser, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable subject only to (a) any limitation on enforcement under Laws relating to bankruptcy, winding-up, insolvency, reorganization, moratorium and arrangement or other similar laws Law affecting or relating to the enforcement of creditors’ ' rights generally, and (b) the discretion that a court may exercise in the granting of equitable remedies such as specific performance and injunction). The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding or investing, as applicable, of the full amount proceeds of the FinancingFinancing pursuant to any agreement relating to the Financing to which the Purchaser or its affiliates is a party, other than as expressly set forth in the Financing Commitments. 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 breach or default or breach on of any term under the part Financing Commitments by the Purchaser of Parent or Merger Sub, as applicable, or to the Knowledge of ParentFinancing Commitments or, any other parties thereto, under to the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectEquity Commitment Letter. As of the date hereof, and subject to assuming the satisfaction of the conditions set forth in Article VI Section 6.1 and Section 6.2 and subject to the performance by the Company of its obligations under Corporation's compliance with this Agreement, neither Parent nor Merger Sub the Purchaser has any no reason to believe that any of the conditions to Financing contemplated by the Financing contemplated in the Financing Letters Commitments will not be satisfied on a timely basis or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth will not be available to the Purchaser at the Effective Time. Subject to the satisfaction of the conditions in Section 6.1 and Section 6.2 and subject to the Corporation's compliance with this Agreement and assuming the Financing is funded in accordance with the Financing Commitments, the proceeds from the Financing will, in the Financing Letters.
(d) As of aggregate, be sufficient to enable the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party Purchaser to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments pay all amounts required to be made in, or contributions to be made to, Parent or Merger Sub paid in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in and the Financing Letters.
(e) As Plan of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive Arrangement and to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party pay all related expenses payable by it in connection with a transaction relating to such transactions (such amounts collectively, the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e"Required Amount").
Appears in 1 contract
Financing. Parent has delivered to the Investor true and complete copies of (a) The an executed commitment letter from Carlyle Partners IV, L.P. and CP IV Coinvestment, L.P. to provide equity financing in an aggregate amount of funds contemplated to be provided pursuant to am▇▇▇▇ set forth therein (the Financing Letters (as defined below), together with the cash on hand of Parent "Equity Funding Letter") and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the an executed commitment letter (the “Equity Financing "Commitment Letter”)") from JPMorgan Chase Bank, dated as of the date hereofN.A., among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse J.P. Morgan Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Wachovia Bank, SunTrust ▇▇▇▇▇National Association, Wacho▇▇▇ ▇▇▇▇▇▇▇▇ent Holdings, Inc.LLC, and The Wachovia Capital Markets, LLC, Bank of Tokyo-Mitsubishi-UFJAmerica, Ltd. (the “Debt Commitment Letter” andN.A., together with the Equity Financing Letter, the “Financing Letters”), pursuant Banc of America Bridge LLC and Banc of America Securities LLC to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts provide debt financing in an aggregate amount set forth therein (being collectively referred to as the “"Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, ," and together with the Equity financing referred to in clause (a) being collectively referred to as the "Financing, the “Financing”"). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, neither the Financing Letters have not Equity Funding Letter or the Commitment Letter has been amended or modified except as permitted by the Merger Agreement, and none of the respective obligations and commitments contained in the Financing Letters Equity Funding Letter and, to the knowledge of Parent as of the date of this Agreement, the Commitment Letter, have not been withdrawn or rescinded in any respect. The Financing LettersEquity Funding Letter and, in the form so delivered to the Company on knowledge of Parent as of the date hereofof this Agreement, the Commitment Letter, are in full force and effect as of the date hereofeffect. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in or contemplated by the Financing Letters.
(e) As Equity Funding Letter or the Commitment Letter. The aggregate proceeds contemplated by the Equity Funding Letter and the Commitment Letter will be sufficient for Merger Co to pay the aggregate Merger Consideration and any other repayment or refinancing of debt contemplated by the Commitment Letter and to pay all related fees and expenses. Notwithstanding the foregoing, the aggregate liability of Parent for any liability under the Merger Agreement and for any breach of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations representation set forth in this Section 3.10(e)2.8 shall not exceed the Parent Termination Fee.
Section 3. Representations and Warranties of Investor. Investor hereby represents and warrants to Parent as follows:
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Sources: Contribution and Subscription Agreement (Stone William C)
Financing. (a) The aggregate amount of funds contemplated Parent and Sub have received and accepted and agreed to be provided pursuant commitment letters dated November 16, 2006 (the “Debt Commitment Letters”) from the financial institutions party thereto (collectively, the “Lenders”) relating to the Financing Letters (as defined below), together with commitment of the cash Lenders to provide debt and preferred and common stock financing required to consummate the Merger on hand of Parent and its Subsidiaries, is sufficient, if fundedthe terms contemplated by this Agreement, to (i) refinance certain existing indebtedness of the Company and to pay the aggregate Per Share Price related fees and any other repayment or refinancing of Indebtedness expenses. The financing contemplated by the Financing Letters; (ii) pay any and all fees and expenses required Debt Commitment Letters is referred to be paid by Parent, Merger Sub and in this Agreement as the Surviving Corporation in connection with the Merger and the “Debt Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder”.
(b) Parent has received and Merger Sub have delivered accepted and agreed to the Company a trueequity commitment letters dated November 16, correct and complete copy of (i) the executed commitment letter 2006 (the “Equity Financing LetterCommitment Letters” and, together with the Debt Commitment Letters, the “Commitment Letters”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto ) from certain Persons (collectively, the “Equity Financing SourcesInvestors”), pursuant ) relating to which the commitment of the Equity Financing Sources have committed, subject Investors to provide cash equity investments required to consummate the Merger on the terms thereofcontemplated by this Agreement, to invest refinance certain existing indebtedness of the Company and to pay related fees and expenses. The cash amounts set forth therein (equity investments contemplated by the Equity Commitment Letters, together with any Alternative Equity Financing referred to in Section 6.03, is collectively referred to herein as the “Equity Financing”) and (ii) ; the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” andEquity Financing, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities is collectively referred to as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete Complete and correct copy copies of any fee letter in connection with the Debt executed Commitment Letter (it being understood that any such fee letter Letters have been provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)Company.
(c) As of the date hereofSubject to its terms and conditions, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing LettersFinancing, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable when funded in accordance with their respective terms against Parent the Commitment Letters and Merger Sub, as applicable, and, to the Knowledge of Parent, each taken together with available cash of the other parties theretoCompany, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating will provide Sub with acquisition financing at the Effective Time sufficient to creditors’ rights generally. The Financing Letters and consummate the Fee Letter contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent Merger on the terms therein and there are no other conditions precedent or other contingencies related contemplated by this Agreement, to the funding refinance certain existing indebtedness of the full amount of the Financing. Company and to pay related fees and expenses.
(d) As of the date of this Agreement, the Commitment Letters are valid, binding and in full force and effect and no event within the direct control of Parent or Sub 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 or an incurable failure to satisfy a condition precedent on the part of Parent or Merger SubSub under the terms and conditions of the Commitment Letters, other than any such default or breach that has been waived by the Lenders or the applicable Equity Investor, as applicablethe case may be, or otherwise cured in a timely manner by Parent or Sub to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any satisfaction of the assumptions Lenders or statements set forth in such Equity Investor, as the Financing Letters inaccurate in any material respectcase may be. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger or Sub has any reason to believe that any of the conditions to the Financing contemplated paid in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paid, or caused to be fully paid, full any and all commitment fees or other fees which are due and payable on or prior required to the date hereof be paid pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters Commitment Letters on or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of before the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
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Financing. (a) The aggregate amount Buyer has delivered to Sellers complete and correct copies, as of funds contemplated to be provided pursuant to the Financing Letters (as defined below)date of this Agreement, together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to of: (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed equity commitment letter (the “Equity Financing Letter”), letters dated as of the date hereof, among Parent, Merger Sub and the other parties thereto of this Agreement (collectively, the “Equity Financing SourcesFunding Letters”), pursuant ) from certain parties (the “Equity Providers”) to which provide in connection with the Equity Financing Sources have committedtransactions contemplated by this Agreement and the Ancillary Agreements, subject only to the terms thereofand conditions therein, to invest equity financing in the cash aggregate amounts set forth therein (being collectively referred to as the “Equity Financing”) ), and (ii) the an executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. this Agreement (the “Debt Commitment Letter” and, together with the Equity Financing LetterFunding Letters, the “Financing Letters”), pursuant from the financial institutions identified therein (such institutions, together with the Equity Providers, the “Financing Sources”) to which provide in connection with the lenders party thereto have committedtransactions contemplated by this Agreement and the Ancillary Agreements, subject to the terms thereofand conditions therein, to lend the amounts debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing” (which term shall include”, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, Financing collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, neither the Financing Equity Funding Letters have not nor Debt Commitment Letter has been amended or modified and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Buyer has fully paid, and will pay in full when payable, any and all commitment fees or other fees in connection with the Equity Funding Letters, the Debt Commitment Letter and the Debt Commitment Fee Letter that are payable on or prior to the date of this Agreement. Assuming the Financing Lettersis funded in accordance with the terms and conditions of the Financing Letters and assuming the accuracy of the representations and warranties set forth in Article 3, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letter will, together with the cash or cash equivalents available to the Companies, in the form so delivered aggregate be sufficient for Buyer to consummate the transactions contemplated by this Agreement and the Ancillary Agreements on the terms and conditions contemplated hereby and thereby.
(b) Except for an executed fee letter dated as of the date of this Agreement (the “Debt Commitment Fee Letter”) relating to the Company on Financing (a true and complete copy of which has been provided to Sellers, with fee amounts and other economic terms redacted), as of the date hereof, of this Agreement there are no side letters or other arrangements related to the Financing other than as expressly set forth in the Financing Letters and the Credit Agreement. The Financing Letters and the Debt Commitment Fee Letter are in full force and effect as of and are the date hereof. The Financing Letters are (i) legal, valid valid, binding and binding enforceable obligations of Parent and Merger Sub, as applicable, Buyer and, to the Knowledge knowledge of ParentBuyer, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallythe Equitable Exceptions. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than (i) with respect to the Equity Financing, as expressly set forth in or expressly contemplated by the Equity Financing Letters and (ii) with respect to the Debt Financing, as expressly set forth in or expressly contemplated by the Debt Commitment Letter and the Credit Agreements. As of the date of this Agreement, no event Buyer has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected taken all actions required to constitute a default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under cause the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paid, or caused Debt Commitment Fee Letter 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letterseffective.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
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Financing. (a) The aggregate amount of funds contemplated Buyer has delivered to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent true and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all complete copies of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the fully executed debt commitment letter (the “Equity Financing Debt Commitment Letter”)) and Redacted Fee Letter, each dated as of the date hereofOctober 27, among Parent, Merger Sub and the other parties thereto 2021 (collectively, the “Equity Debt Financing Commitments”), between Buyer and the Persons identified therein (together with any Persons that become a party thereto after the date of this Agreement in accordance with the terms thereof, the “Debt Financing Sources”), pursuant to which each of the Equity Financing Sources have committedlenders party thereto has agreed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms conditions thereof, to lend the amounts set forth therein (collectively the “Debt Financing” ”) for the purpose of, among other things, funding the Transactions and related fees and expenses on the Closing Date (which term shall includecollectively, if applicable, high-yield bonds issued in lieu of certain the “Financing Purposes”). Buyer has also delivered to Parent a true and complete copy of the debt facilities fully executed equity commitment letter dated as contemplated under of October 27, 2021 (the Debt Commitment Letter) “Equity Financing Commitment” and, together with the Debt Financing Commitments, the “Financing Commitments”), from the Persons identified therein (together with any Persons that become a party thereto after the date of this Agreement in accordance with the terms thereof, the “Equity Financing Sources” and, together with the Debt Financing Sources, the “Financing Sources”), reflecting each such Person’s commitment to provide to Buyer at Closing the cash amount set forth therein subject to the terms and conditions thereof (the “Equity Financing” and, together with the Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As Each of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing LettersCommitments, in the form so delivered to the Company on the date hereofdelivered, are (x) is in full force and effect as of the date hereof. The Financing Letters are effect, (iy) is a legal, valid and binding obligations obligation of Parent and Merger Sub, as applicable, Buyer and, to the Knowledge of ParentBuyer, each of the other parties thereto and (iiz) is enforceable in accordance with their respective its terms against Parent and Merger Sub, as applicable, Buyer and, to the Knowledge of ParentBuyer, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent subject to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the FinancingEnforceability Exceptions. As of the date of this Agreement, the Financing Commitments have not been amended, supplemented or otherwise modified in any respect (provided that the existence or exercise of the “market flex” provisions contained in the Redacted Fee Letter in connection with the Debt Financing Commitments shall not constitute an amendment, supplement or modification of the Debt Financing Commitments), and the financing commitments thereunder have not been withdrawn, terminated or rescinded in any respect. As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article II and the performance by Parent of its obligations under this Agreement, (x) no event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Merger SubBuyer or, as applicable, or to the Knowledge of ParentBuyer, any other parties thereto, thereto under the Financing Letters Commitments, and (y) Buyer has no reason to believe that any term or that makes condition precedent to the funding of any of the assumptions or statements Financing set forth in the applicable Financing Letters inaccurate in Commitments will not be satisfied on a timely basis, or that any material respect. As portion of the Financing required for the Financing Purposes will otherwise not be available to Buyer on a timely basis to consummate the Transactions at the time required pursuant to this Agreement. Buyer has fully paid or caused to be paid any and all commitment fees or other fees required by the Financing Commitments to be paid thereunder on or prior to the date hereof, and subject to of this Agreement. Assuming the satisfaction of the conditions set forth in Article VI and VI, the performance by Financing funded on the Company Closing Date, when funded in accordance with the Financing Commitments, together with cash on hand or other sources of its funds immediately available to Buyer, will provide Buyer with funds sufficient to satisfy all of Buyer’s obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of including the conditions to obligations under Article I and the Financing contemplated in Purposes. The obligations to make the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 Buyer pursuant to the terms of the Financing Letters. Other Commitments are not subject to any conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than the Fee Letter and as expressly set forth in Schedule 3.10(c)the Financing Commitments. As of the date of this Agreement, there are no side letters Contracts or other Contracts agreements, arrangements or understandings (whether oral or written) or commitments to enter into agreements, arrangements or understandings (whether oral or written) to which Parent Buyer 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 as expressly set forth contained in the Financing Letters.
(d) As of Commitments and delivered to Parent on or prior to the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has that would (i) retained impose any financial advisor on a basis exclusive additional or adversely modified conditions or other contingencies to Parent or Merger Sub the funding of the Debt Financing other than advisors to which those contained in the Company Board (or any authorized committee thereof) has previously consented or Debt Financing Commitments as in effect on the date of this Agreement, (ii) entered into an exclusivityotherwise reasonably be expected to materially and adversely affect the ability of Buyer to consummate the Transactions, lock-up (iii) impair or other similar agreement, arrangement materially delay the funding of the Debt Financing or binding understanding the Closing or (iv) adversely affect the ability of Buyer to enforce its rights with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating respect to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Debt Financing.
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Financing. (a) US Purchaser is a party to and has accepted a fully executed commitment letter dated as of the date of this Agreement (together with all exhibits and schedules thereto, the “Debt Commitment Letter”) addressed to Purchasers from each Lender party thereto, pursuant to which the Lenders have agreed, subject to the terms and conditions thereof, to provide debt financing in the amounts set forth therein. The aggregate amount of funds contemplated to be provided debt financing committed pursuant to the Financing Letters (Debt Commitment Letter is collectively referred to in this Agreement as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the “Debt Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder”.
(b) Parent Purchasers are party to and Merger Sub have delivered to the Company accepted a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the fully executed commitment letter, dated as of the date hereofof this Agreement (together with all exhibits and schedules thereto, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Equity Commitment Letter” and, together with the Equity Financing Debt Commitment Letter, the “Financing Commitment Letters”), from CVC Capital Partners IX (A) L.P., CVC Capital Partners Investment Europe IX L.P. and CVC Capital Partners IX (B) SCSp (collectively, the “Equity Investors”) pursuant to which which, on the lenders party thereto have committed, terms and subject to the terms thereofconditions set forth therein, the Equity Investors have agreed to lend invest in Purchasers the amounts set forth therein (therein. The cash equity committed pursuant to the Equity Commitment Letter is collectively referred to in this Agreement as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under Cash Equity”. The Cash Equity and the Debt Commitment Letter) and, together with the Equity Financing, Financing are collectively referred to as the “Financing”). Parent The Equity Commitment Letter provides that Seller is an express third-party beneficiary of, and is entitled to enforce, the Equity Commitment Letter, pursuant to the terms and conditions set forth therein.
(c) US Purchaser has also delivered to the Company Seller a true, complete and correct copy of the executed Debt Commitment Letter and Purchasers have delivered to Seller a true, complete and correct copy of the executed Equity Commitment Letter in each case together with any fee letter letters related thereto, subject, in the case of such fee letters, to redaction solely of fee amounts, pricing terms, original issue discount amounts, “flex” provisions and other economic provisions that are customarily redacted in connection with transactions of this type and that could not in any event affect the Debt Commitment Letter (it being understood that any such fee letter provided to conditionality, enforceability, availability, termination or amount of the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)Financing.
(cd) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained Except as expressly set forth in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Commitment Letters, in the form so delivered to the Company on the date hereof, there are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the no conditions precedent to the obligations of the parties thereunder Lenders and the Equity Investors to make provide the applicable Financing or any contingencies that would permit the Lenders or the Equity Investors to reduce the aggregate principal amount of the Financing, including any condition or other contingency relating to the amount or availability of the Financing available pursuant to Parent any “flex” provision. As of the date hereof, assuming (i) that all representations and warranties set forth in Article III are true and correct in all material respects and (ii) the satisfaction of the conditions in Section 8.1 and Section 8.2 on the terms therein and there are no other Closing Date, the Purchasers do not have any reason to believe that they will be unable to satisfy on a timely basis all conditions precedent or other contingencies related to the funding of any Financing required to be satisfied by it pursuant to any of the full Commitment Letters on or prior to the Closing Date, and, as of the date hereof, the Purchasers do not have Knowledge that any Lender or Equity Investor will not perform its obligations thereunder to fund the applicable Financing upon satisfaction of the applicable conditions precedent set forth in the applicable Commitment Letter. Other than as expressly set forth in the Commitment Letters, there are no side letters, Contracts, understandings or arrangements of any kind relating to the Commitment Letters or the Financing that would reasonably be expected to adversely affect the conditionality, enforceability, availability, termination or amount of the Financing.
(e) The Financing, when funded in accordance with the Commitment Letters and giving effect to any “flex” provision in or related to the Debt Commitment Letter (including with respect to fees and original issue discount) (together with all other unrestricted cash then held by Purchaser, which unrestricted cash shall not be used by Purchaser for any purpose other than to satisfy the Financing Amounts (as defined below)), shall provide Purchasers with cash proceeds on the Closing Date sufficient for the satisfaction of all of Purchasers’ obligations under this Agreement, the other Transaction Documents and the Commitment Letters required to be satisfied by Purchasers on the Closing Date, including the payment of the Closing Purchase Price, and all fees and expenses and other amounts payable by Purchasers or the Purchased Entities (and their Subsidiaries) or Purchasers’ other Affiliates, and for any repayment or refinancing of any outstanding Indebtedness of any Purchased Entity or any Subsidiary thereof required to be repaid or refinanced pursuant to this Agreement, the other Transaction Documents or the Commitment Letters (such amounts, collectively, the “Financing Amounts”).
(f) As of the date of this Agreement, the Commitment Letters (i) constitute the legal, valid, binding and enforceable obligations of Purchasers and, to the Knowledge of Purchasers in the case of the Debt Commitment Letter, all the other parties thereto, and (ii) are in full force and effect. As of the date of this Agreement, no event has occurred or circumstance exists which, which (with or without notice, lapse of time or both, would ) constitutes or would reasonably be expected to constitute a default default, breach or breach failure to satisfy a condition precedent on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, Purchaser under the Financing Letters or Commitment Letters. Assuming (i) that makes any of the assumptions or statements all representations and warranties set forth in the Financing Letters inaccurate Article III are true and correct in any all material respect. As of the date hereof, respects and subject to (ii) the satisfaction of the conditions set forth in Article VI Section 8.1 and Section 8.2 on the performance by Closing Date, as of the Company date of its obligations under this Agreement, neither Parent nor Merger Sub has Purchasers do not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied by Purchasers on a timely basis or that the Financing will not be made available to Parent and Merger Sub at or prior to Purchasers on the Closing Date. Parent and Merger Sub Purchasers have fully paid, or caused to be fully paid, paid in full any and all commitment fees or other fees which are due and payable on or prior required to the date hereof be paid pursuant to the terms of the Financing LettersCommitment Letters on or before the date of this Agreement. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereofof this Agreement, (i) the Commitment Letters have not been amended or otherwise modified, (ii) none of Parent, Merger Sub or the respective commitments under any of their respective Affiliates the Commitment Letters have been terminated, reduced, withdrawn or rescinded in any respect, and (iii) to the Knowledge of Purchasers, no termination, reduction, withdrawal or rescission thereof is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) contemplated. As of the date hereofof this Agreement, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up no such amendment or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making modification of any Alternative Transaction Proposal)Commitment Letter is contemplated (except, in the case of clauses the Debt Commitment Letter, such amendments or other modifications expressly contemplated therein to effectuate the addition of lenders, lead arrangers, bookrunners, agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof (iincluding to the extent documented as a joinder, amendment or novation of the obligations of the Financing Parties under the Debt Commitment Letter)).
(g) Subject to and (ii)without limiting Section 11.7, in connection with no event shall the Merger receipt or availability of any funds or financing (including the Financing) by or to Purchasers or any of their Affiliates or any other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would financing be a breach of, condition to any of Purchasers’ obligations under this Agreement or would cause to be untrue, any of the representations in this Section 3.10(e)other Transaction Documents.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below)Purchaser has, together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parentand will have as of the Closing
(i) sufficient funds available for purposes of funding the transactions contemplated herein and paying any other amount due hereunder or in respect hereof and (ii) the resources and capabilities (financial or otherwise) to perform its obligations hereunder. The Purchaser has not, Merger Sub as of the date hereof, and will not have as of the Closing, incurred any obligation, commitment, restriction or liability of any kind, which would materially impair or adversely affect such resources and capabilities. Notwithstanding anything to the contrary herein, the Purchaser’s obligations to consummate the transactions contemplated by this Agreement are not conditioned or contingent in any way upon the receipt of financing from any Person.
(a) [The Purchaser has delivered to the Main Sellers and the other parties thereto Joint Administrators correct and complete copies of: (collectivelyi) executed equity commitment letters of even date herewith and addressed to Purchaser and NNC (with consent rights in respect of any amendment thereto, exercisable by NNC in its sole discretion) (such equity commitment letters, the “Equity Financing SourcesCommitment Letters”), pursuant to which the Equity Financing Sources [•](the “Sponsors”) have committed, subject solely to the terms and conditions thereof, to invest an aggregate amount of $[●] in equity financing in Purchaser for purposes of funding the cash amounts set forth therein transactions contemplated herein, under the EMEA Asset Sale Agreement and under the NNSA Irrevocable Offer and paying any other amount due hereunder or in respect hereof including in respect of any breach hereof by Purchaser (the “Equity Financing”) and (ii) the executed debt commitment letterletters dated [●], dated as of the date hereof2009 and related term sheet (such debt commitment letters, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment LetterLetters” and, together with the Equity Financing LetterCommitment Letters, the “Financing LettersCommitments”), pursuant to which the certain lenders party thereto have committed, subject solely to the terms and conditions thereof, to lend the amounts set forth therein provide Purchaser with an aggregate amount of $[●] in debt financing (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to ) for purposes of funding the Company a truetransactions contemplated herein, complete under the EMEA Asset Sale Agreement and correct copy of under the NNSA Irrevocable Offer and paying any fee letter other amount due hereunder or in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)respect hereof.
(cb) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, Commitments in the form so delivered to the Company on the date hereof, are valid and in full force and effect as of the date hereofeffect. The Financing Letters are (i) legal, valid Commitments have not been and binding obligations of Parent and Merger Sub, as applicable, and, prior to the Knowledge of ParentClosing, each shall not be, withdrawn, terminated, assigned or otherwise amended or modified in any respect without the express written consent of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyMain Sellers. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no No event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent the Purchaser or Merger Subthe Sponsors or, as applicable, or to the Knowledge of Parentthe Purchaser, of the lenders under any other parties thereto, under term or condition in the Financing Letters Commitments. The Financing Commitments, together with a separate fee letter, constitute, as of the date hereof, the entire and complete agreements between the parties thereto with respect to the financing contemplated thereby, and, except as set forth, described or provided for therein, (i) there are no conditions precedent to the respective obligations of the Sponsors and lenders to provide the Financing, and (ii) there are no contractual contingencies or other provisions under any agreement (including any side letters) or any understanding or commitment relating to the transactions contemplated by this Agreement to which the Purchaser, the Sponsors or any of their respective Affiliates is a party that makes would permit any of the assumptions Sponsors or statements set forth in lenders to reduce the total amount of the Financing Letters inaccurate in or impose any material respectadditional condition precedent to the availability of the Financing. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub Purchaser has any no reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Dateon a timely basis. Parent and Merger Sub have The Purchaser has fully paid, or caused to be fully paid, paid any and all commitment fees, if any, or other fees which are due and payable on or prior to the date hereof pursuant to the terms of required by the Financing Letters. Other than the Fee Letter and Commitments to be paid as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof. Subject to its terms and conditions, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee the aggregate proceeds of the Company or Financing, when funded in accordance with the Financing Commitments, will, together with unrestricted cash on hand available to the Purchaser from its Subsidiaries) concerning any investments Affiliates, provide financing sufficient to pay the Purchase Price, all other amounts to be made inpaid or repaid by the Purchaser under this Agreement, the EMEA Asset Sale Agreement and the NNSA Irrevocable Offer (whether payable on or contributions to be made toafter the Closing or in the event of termination of this Agreement), Parent or Merger Sub in connection and all of the Purchaser’s and its Affiliates’ fees and expenses associated with the Merger and/or any other transactions contemplated by in this Agreement, the EMEA Asset Sale Agreement other than as set forth in and the NNSA Irrevocable Offer. The Purchaser acknowledges and agrees that receipt of the aggregate (or any) proceeds of the Financing Letters.
(e) As of by the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on Purchaser is not a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating condition precedent to the Company or its Subsidiaries (including in connection with Purchaser’s obligation to consummate the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)hereby.] 21
Appears in 1 contract
Sources: Asset Sale Agreement
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy of an executed equity commitment letter, dated as of June 6, 2023, together with all attachments thereto, which is attached hereto as Annex IV (i) as may be amended, restated, supplemented or otherwise modified in accordance with the executed commitment letter terms hereof, the “Equity Commitment Letter”), from GPC WH FUND LP, a Delaware limited partnership (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing SourcesInvestor”), pursuant to which the Equity Financing Sources have committedInvestor has agreed, subject to the terms and conditions thereof, to invest in Parent the cash amounts set forth therein (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 “Equity FinancingCash Equity.”
(b) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, correct and complete copy of an executed debt commitment letter, dated as of June 6, 2023, together with all attachments thereto, which is attached hereto as Annex V (as may be amended, restated, supplemented or otherwise modified in accordance with the terms hereof, (provided for the avoidance of doubt, that in no event shall any amendment, restatement, supplement or other modification include any Restricted Terms (as defined below)) the “Debt Commitment Letter” and together with the Equity Commitment Letter, the “Commitment Letters”), 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 referred to in this Agreement as the “Debt Financing.” The Cash Equity and the Debt Financing are collectively referred to as the “Financing”. Parent has delivered to the Company true, correct copy and complete copies of any fee letter letters related to the Financing (with respect to such related fee letters, redacted for provisions related to fees and other economic or commercially sensitive 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 hereof, there are no conditions precedent to the obligations of the Lenders and the Equity Investor to provide the Debt Financing (in the case of the Lenders) or the Cash Equity (in the case of the Equity Investor) or any contingencies that would permit the Lenders or the Equity Investor to reduce the total amount of the Debt Financing (in the case of the Lenders) or the Cash Equity (in the case of the Equity Investor). There are no side letters, written understandings or other agreements or written arrangements relating to the Financing that would impose additional conditions precedent beyond those in the Commitment Letters to, or otherwise reasonably be expected to adversely affect the availability or amount of, the Financing. As of the date hereof, assuming the accuracy of the 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, 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 on or prior to the Closing Date, nor does Parent have knowledge that any of the Lenders or Equity Investor 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 aggregate Cash Consideration and any other amounts required to be paid by Parent or Merger Sub on the Closing Date in connection with the Debt Commitment Letter consummation of the Contemplated Transactions and the payment of any fees and expenses of or payable by Parent, Merger Sub or the Surviving Corporation in connection with the foregoing (it being understood that any such fee letter provided to amount, the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee LetterFinancing Amount”).
(ce) As of the date hereof, the Financing Commitment Letters are in full force and effect and are valid and binding obligations of Parent and, to the Knowledge of Parent, the other parties thereto, 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 III, the performance by the Company of its obligations under Article V and the satisfaction of the conditions set forth in Section 6.1, no event has occurred that, with or without notice, lapse of 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 under the terms and conditions of the Commitment Letters. Parent has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letters on or before the date of this Agreement, and will pay in full any such amounts due on or before the Closing Date. None of the Commitment Letters have not 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 Date, except as permitted by the terms of this Agreement, including Section 5.20(a), as of the date hereof, and none of the respective obligations and commitments contained in under any of the Financing Commitment Letters have been withdrawn or rescinded in any respect. The Financing Lettersrespect as of the date hereof.
(f) Concurrently with the execution of this Agreement, in Parent has caused the form so delivered Equity Investor to deliver to the Company the duly executed Guaranty. The execution, delivery and performance of the Guaranty by the Equity Investor, and the consummation of the transactions contemplated thereby, have been duly and validly authorized by all requisite action by the Equity Investor, and no other proceedings on the date hereofpart of the Equity Investor are necessary to authorize the execution, are delivery or performance of the Guaranty by the Equity Investor. The Guaranty has been duly and validly executed and delivered by the Equity Investor and is in full force and effect as of the date hereof. The Financing Letters are (i) legal, and constitutes a valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each obligation of the other parties thereto Equity Investor, duly executed by the Equity Investor and (ii) enforceable against the Equity Investor in accordance with their respective terms against Parent its terms, and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to could constitute a default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, Equity Investor under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersGuaranty.
(dg) As of the date hereof, none ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub acknowledge and agree that it is not a condition to any of Parent, Merger ’s or ▇▇▇▇▇▇ Sub’s obligations hereunder that Parent and ▇▇▇▇▇▇ Sub or obtain any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction refinancing (including, for the avoidance of doubt, the Financing) for or relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Contemplated Transactions.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Buyer has delivered to the Company a true, complete and correct and complete copy copies of (i) the a fully executed commitment letter (the “Equity Financing Debt Commitment Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC▇▇▇▇▇▇ Commercial Paper Inc., ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Brothers Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation, ▇▇▇▇▇▇▇ Lynch, Inc.Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, UBS Loan Finance LLC and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. UBS Securities LLC (the “Debt Commitment Letter” and, together with the Equity Financing Lettertogether, the “Financing LettersSenior Lenders”), pursuant to which certain of such financial institutions have committed, upon the terms and subject to the conditions set forth therein, to provide credit facilities in the amount of $675 million in connection with the transactions contemplated by this Agreement and (ii) the Contribution Agreement executed by Silver Lake Partners II, L.P. and Silver Lake Technology Investors II, L.L.C. (collectively, “SLP”), pursuant to which the lenders party thereto Silver Lake Investors (as such term is defined in the Contribution Agreement) have committed, upon the terms and subject to the terms thereofconditions set forth therein, to lend provide equity financing in the amounts set forth therein aggregate amount of up to $349 million (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities plus up to an additional $20 million as contemplated under the Debt Commitment Lettercircumstances described therein) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the transactions contemplated by this Agreement and the Co-Investor (as such term is defined in the Contribution Agreement) have committed to contribute to Buyer an aggregate of 7,518,483 shares of Company Common Stock. The Debt Commitment Letter (it being understood that any such fee letter provided and the Contribution Agreement are hereinafter referred to collectively as the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee LetterCommitment Letters.”)
(cb) As of the date hereof, the Financing Commitment Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, are in the form so delivered to the Company on the date hereofCompany, are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, Buyer and, to the Knowledge knowledge of ParentBuyer, each of the other parties thereto and (ii) 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, . All commitment fees required to be paid thereunder have been and will be duly paid in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financingwhen due. As of the date of this Agreement, the Commitment Letters have not been amended or terminated. As of the date of this Agreement, there is no existing default or breach on the part of Buyer, the Silver Lake Investors or, to the Buyer’s knowledge, the Co-Investor or any event has occurred or circumstance exists which, with or without notice, lapse of time or both, both would or would reasonably be expected to constitute a default or breach on the part of Parent Buyer or Merger Subthe Silver Lake Investors or, as applicable, or to the Knowledge of ParentBuyer’s knowledge, any other parties thereto, the Co-Investor under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectCommitment Letters. As of the date hereof, Buyer does not believe that it will be unable to satisfy in a timely basis any term or condition of closing to be satisfied by it contained in the Commitment Letters. Assuming that the representations and subject to the satisfaction warranties of the conditions set forth Company in Article VI this Agreement are true and correct and based on the performance financial projections provided by the Company of its obligations under this Agreementto Buyer, neither Parent nor Merger Sub has any reason to believe that any of the conditions to aggregate proceeds contemplated by the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent Commitment Letters, if and Merger Sub at or when funded immediately prior to the Closing Date. Parent and Merger Sub have fully paidEffective Time in accordance with the Commitment Letters, or caused to be fully paid, any and all commitment or other fees which are due and payable on or prior to together with the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee available unrestricted cash of the Company or its Subsidiaries) concerning any (assuming the liquidation of all investments for their stated value), will be sufficient for Buyer and the Surviving Corporation to pay the aggregate Merger Consideration, the aggregate consideration to be made in, or contributions paid to be made holders of Company Stock Options pursuant to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy fully executed copies of (ia) the executed commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA and ▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. ▇▇▇ Sachs Lending Partners LLC (the “Debt Commitment Letter” and”) and (b) the fee letter, together with among Parent, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Bank USA and ▇▇▇▇▇▇▇ Sachs Lending Partners LLC, dated as of the Equity Financing Letterdate hereof (as redacted to remove only the fee amounts, pricing caps, the rates and amounts included in the “market flex”), in each case, including all exhibits, schedules, annexes and amendments to such letters in effect as of the date of this Agreement (collectively, the “Financing Debt Letters”), pursuant to which the lenders party thereto have committed, and subject to the terms and conditions thereof, each of the parties thereto (other than Parent) has severally committed to lend the amounts set forth therein to Parent (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu provision of certain of the debt facilities such funds as contemplated under the Debt Commitment Letter) and, together with the Equity Financingset forth therein, the “Financing”)) for the purposes set forth in such Debt Letters. Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the The Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended amended, restated or otherwise modified or waived prior to the execution and none delivery of this Agreement (other than to add lenders, arrangers, agents, bookrunners, managers and other financing sources), and the respective obligations and commitments contained in the Financing Debt Letters have not been withdrawn withdrawn, rescinded, amended, restated or rescinded otherwise modified in any respect. The Financing Letters, in the form so delivered respect prior to the Company on execution and delivery of this Agreement. As of the date hereofexecution and delivery of this Agreement, the Debt Letters are in full force and effect as of and constitute the date hereof. The Financing Letters are (i) legal, valid and binding obligations obligation of each of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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, subject in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein Bankruptcy and there Equity Exceptions. There are no other conditions precedent or other contingencies directly or indirectly related to the funding of the full amount Financing pursuant to the Debt Letters, other than as expressly set forth in the Debt Letters. Subject to the terms and conditions thereof, the Debt Letters will provide at the Closing Parent and Merger Sub, together with available cash, with sufficient funds to pay all of Parent’s obligations under this Agreement, including the payment of the FinancingCash Consideration and all fees and expenses expected to be incurred in connection therewith. As of the date of this Agreement, 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 breach or default or breach on the part of Parent under the Debt Letters or Merger Sub, as applicable, or any other party to the Knowledge of Parent, any other parties thereto, under the Financing Debt Letters or that makes would (a) result in any of the assumptions conditions in the Debt Letters not being satisfied or statements set forth (b) otherwise result in the Financing Letters inaccurate not being available, other than such default or breach that has been waived by the Lenders or otherwise cured in any material respecta timely manner by Parent or Merger Sub to the satisfaction of the Lenders, as the case may be. As of the date hereofof this Agreement, and subject there are no side letters or other agreements, Contracts, arrangements or understandings (written or oral) directly or indirectly related to the satisfaction funding of the conditions Financing that could affect the conditionality, principal amount or availability of the Financing other than as expressly set forth in Article VI the Debt Letters. Parent has fully paid all commitment fees or other fees required to be paid on or prior to the date of this Agreement in connection with the Financing. Assuming the accuracy of the Company’s representations and warranties contained herein, as of the performance by the Company date of its obligations under this Agreement, neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing contemplated in by the Financing Debt Letters will not be satisfied on a timely basis or that the Financing contemplated by the Debt Letters will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to Buyer has received (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, letters from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners, L.P. and ▇.▇. ▇▇▇▇▇▇ Securities Inc. and JPMorgan Chase Bank, Inc.N.A. (the "Lenders"), true and complete copies of which have been provided to Seller (as the same may be amended in compliance with Section 5.10, the "Debt Commitment Letters"), confirming the commitment of the Lenders, subject to the terms and conditions thereof, to provide the debt financing described therein (the "Debt Financing"), and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (ii) a commitment letter (the “Debt "Equity Commitment Letter” " and, together with the Equity Financing LetterDebt Commitment Letters, the “Financing "Commitment Letters”)") from the Sponsor, pursuant confirming the Sponsor's commitment to which the lenders party thereto have committed, provide (subject to the terms thereof, to lend the amounts conditions and limitations set forth therein therein) an aggregate of $265,000,000 of equity financing (the “Debt "Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) " and, together with the Equity Debt Financing, the “"Financing”"). Parent has also delivered to , the Company a true, complete and correct copy proceeds of any fee letter which (upon funding in connection accordance with the Debt terms of the Commitment Letter (it being understood that any Letters), together with such fee letter provided other funds as Buyer then has, will be sufficient to permit Buyer to consummate the Company may be redacted to omit transactions contemplated by this Agreement, including the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) payment of the Purchase Price and all related fees and expenses arising out of the transactions contemplated hereby. As of the date hereof, the Financing Commitment Letters have not are, to the Knowledge of Buyer (in the case of the Debt Commitment Letters), in full force and effect. None of the Commitment Letters has been amended or modified prior to the date of this Agreement, and none Buyer has no Knowledge that any of the respective obligations and commitments contained in the Financing Commitment Letters have has been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreementthe Commitment Letters. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).[Washington DC #361873 v9] 28
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant Company has received and accepted (1) a commitment letter dated August 31, 2006 (the "Commitment Letter"), from the lenders party thereto (collectively, the "Lenders") relating to the Financing Letters commitment of the Lenders to provide the debt financing required by Mercury and its subsidiaries to effect the Refinancing (as defined below) and to pay related fees and expenses of the Transactions, (2) a commitment letter dated August 28, 2006 (the "Company Commitment Letter"), from Aozora Bank, Ltd., ("Aozora")relating to the commitment of Aozora to provide the bridge financing (the "Bridge Financing") required by the Company, the Purchasers and the holders of Mercury common stock and holders of Mercury preferred stock to consummate the Merger, the Acquisition and the Other Stock Acquisitions, (3) the commitment letter dated August 29, 2006, from Aozora, on behalf of the lenders (the "Company Lenders") under the Company's existing credit facility (the "Company Consent Letter") to enter into a consent agreement confirming the approval by the Company Lenders of certain amendments to the Company's existing credit facility required thereunder by the Company in connection with the Transactions and Refinancing (as defined below) (the "Company Facility Amendments") and (4) a commitment letter dated August 31, 2006 (the "Equity Commitment" and, together with the cash on hand of Parent and its SubsidiariesCommitment Letter, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub Company Commitment Letter and the Surviving Corporation in connection with Company Consent Letter, the Merger "Commitments"), between RHJI, and the Financing; and (iii) satisfy all Company relating to the agreement of RHJI to provide the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered equity financing to the Company as specified therein (the "RHJI equity financing"). The Company has provided or made available to the Purchasers' Representative a true, correct and complete copy of each of the Commitments. The financing contemplated by the Commitment Letter, the Company Consent Letter and the Company Commitment Letter is referred to herein as the "Financing."
(b) Subject to its terms and conditions, the Financing and RHJI equity financing, when funded in accordance with the applicable terms and conditions of the Commitment Letter, Company Commitment Letter, Company Consent Letter and Equity Commitment, will provide Acquisition Sub with funds at the Effective Time sufficient to (i) consummate the executed commitment letter (the “Equity Financing Letter”)Merger, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) finance the executed commitment letter, dated Consent Solicitations (as of defined in the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”Merger Agreement), pursuant to which (iii) refinance the lenders party thereto have committed, subject to existing indebtedness of Mercury and its subsidiaries described in the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit "Refinancing"), (iv) provide the numerical amounts provided thereinBridge Financing and (v) (any such fee letter, a “Fee Letter”)
(c) As pay related fees and expenses of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersTransactions.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as As of the date hereof, among ParentParent has delivered to the Company true, Merger Sub complete and fully executed copies of (i) a debt commitment letter (including (A) all exhibits, schedules, annexes and, so long as in accordance with Section 6.15, amendments thereto; (B) any associated fee letter (which fee letter may be redacted to omit fee amounts, pricing terms, pricing caps and certain other economic terms that do not impact the amount or availability of the Debt Financing or expand the conditions to obtaining the Debt Financing on the Closing Date); and (C) any other associated engagement letter or other agreement or arrangement containing conditions to the funding of the full amount of the Financing, the “Debt Commitment Letter”) from JPMorgan Chase Bank, N.
A. (together with the other parties lenders who become a party thereto (following the date hereof in accordance with Section 6.15, collectively, the “Equity Financing SourcesLenders”), pursuant to which which, among other things, the Equity Financing Sources Lenders have committed, subject committed to provide Parent and Merger Sub with debt financing for the terms thereof, to invest purpose of consummating the cash amounts set forth therein Transactions (the debt financing contemplated by the Debt Commitment Letter, being referred to as the “Equity Debt Financing”) and (ii) the executed an equity commitment letterletter (including all exhibits, dated schedules, annexes and, so long as of the date hereofin accordance with Section 6.15, from Credit Suisse Securities (USA) LLCamendments thereto, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Equity Commitment Letter” and, together with the Equity Financing Debt Commitment Letter, the “Financing LettersCommitment Letter”)) from The Veritas Capital Fund VII, L.P. (the “Equity Fund”) pursuant to which the lenders party thereto have committed, subject Equity Fund has committed to provide Parent and Merger Sub with equity financing for the terms thereof, to lend purpose of consummating the amounts set forth therein Transactions (the equity financing contemplated by the Equity Commitment Letter, being referred to as the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Commitment Letters have not been amended amended, waived or modified by or with the consent of Parent or Merger Sub, and none of the respective obligations and commitments contained in the Financing Commitment Letters have not been withdrawn withdrawn, modified or rescinded in any respect, and no such amendment, waiver, modification, withdrawal or rescission is contemplated. The Financing LettersExcept for the Debt Commitment Letter, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of neither Parent and nor Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent Sub has entered into any side letters or other contingencies contracts, instruments or other commitments, obligations or arrangements (whether written or oral) related to the funding of the full amount of the Debt Financing, other than (i) as expressly set forth in the Debt Commitment Letter and delivered to the Company prior to the date of this Agreement and (ii) customary engagement letters or nondisclosure or non-reliance agreements that do not impact the conditionality or aggregate amount of the Financing. With respect to any commitment letter (including all exhibits, schedules and annexes thereto and any associated fee letter) governing any Replacement Commitment Facility (as defined in the Debt Commitment Letter, dated as of the date hereof) (the “Replacement Facility Commitment Letter”), the Parties agree that upon delivery to the Company of a fully executed version thereof that is permitted under Section 6.15, the Replacement Facility Commitment Letter shall be deemed a “Debt Commitment Letter” hereunder and Parent shall be deemed to, as of such date of delivery, make the same representations and agree to the same covenants contained herein with respect to the Debt Commitment Letter regarding such Replacement Facility Commitment Letter.
(b) The Equity Commitment Letter is in full force and effect and is a legal, valid and binding obligation of Parent and Merger Sub and the other parties thereto. The Debt Commitment Letter is in full force and effect and is a legal, valid and binding obligation of Parent and Merger Sub and, to the Knowledge of Parent and Merger Sub, the other parties thereto. As of the date of this Agreement, no event has occurred or circumstance exists and on the Closing Date, no event shall have occurred and be continuing, 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, as applicable, Sub or any other parties thereto under any term or condition of the Financing Commitment Letter. Parent and Merger Sub have fully paid (or caused to the Knowledge of Parentbe fully paid) any and all commitment fees, any other parties thereto, fees or any other amounts required by the Financing Commitment Letter to be paid on or before the date of this Agreement and Parent and Merger Sub represent that it shall fully pay or cause to be paid any other fees or other amounts that are due under the Financing Letters Commitment Letter or that makes any of the assumptions or statements related fee letter. Other than as set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, Commitment Letter and subject to assuming the satisfaction or waiver of each of the conditions set forth in Article VI VII at the Closing, there are no conditions precedent to the funding of the full amount of the Financing and there are no contractual contingencies or other provisions under any agreement (including any side letters) relating to the performance by Transactions to which Parent or Merger Sub of any of their respective Affiliates is a party that would permit the Company Lenders to reduce the total amount of its obligations under this Agreementthe Financing or impose any additional conditions precedent to the availability of the Financing or that could affect the timing or termination of the Financing. Assuming the satisfaction or waiver of each of the conditions set forth in Article VII at the Closing, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters to be satisfied by it will not be satisfied on a timely basis or that the Financing will not be made available to Parent and Merger Sub at or immediately prior to the Closing Date. Parent 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 terms of Closing.
(c) Assuming (i) the Financing Letters. Other than is funded in accordance with the Fee Letter and as conditions set forth in Schedule 3.10(c)the Financing Commitment Letters and (ii) the satisfaction or waiver of each of the conditions set forth in Article VII at the Closing, there are (A) the aggregate proceeds of the Financing, when funded in accordance with the Financing Commitment Letter, will provide financing sufficient to pay the aggregate Merger Consideration 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, Company PSUs and Director RSUs under this Agreement) and to pay all related fees and expenses required to be paid on such date and (B) assuming the accuracy of the representations and warranties of the Company set forth in Article IV, upon the consummation of the Transactions, the Surviving Corporation, together with its Subsidiaries on a consolidated basis, will be Solvent.
(d) Without limiting Section 9.9, in no side letters event shall the receipt or other Contracts availability of any funds or financing by or to which Parent or any of its Affiliates is or any other financing transaction be a party related condition to the funding or investing, as applicable, any of the full amount obligations of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Lettershereunder.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (Perspecta Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have ASAC has delivered to the Seller and the Company a true, complete and correct and complete copy copies of (i) the executed equity commitment letter (the “Equity Financing Letter”)letters and subscription agreements, dated as of the date hereof, among Parent, Merger Sub and from the other parties thereto investors set forth on Schedule C hereto (collectively, the “ASAC Equity Financing SourcesCommitments”), pursuant to which the Equity Financing Sources parties thereto have committedagreed, subject to the terms thereofand conditions of the ASAC Equity Commitments, severally and not jointly, to invest the cash amounts set forth therein (the “Equity Financing”) provide equity financing to ASAC and (ii) the executed commitment letterletters, dated as of the date hereofhereof (the “ASAC Debt Financing Commitments”), from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ International and JPMorgan Chase Bank, Inc.N.A., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. London Branch (the “Debt Commitment LetterASAC Financing Sources” and, together with the Equity Company Debt Financing LetterSources, the “Financing LettersSources,” and the Financing Sources, together with any former, current and future Affiliates, officers, directors, managers, employees, equityholders, members, managers, partners, agents, representatives, successors or assigns of any of the foregoing or any of their Affiliates, the “Financing Source Related Parties”), pursuant to which which, among other things, the lenders party thereto ASAC Financing Sources have committedagreed, subject to the terms thereofand conditions of the ASAC Debt Financing Commitments, severally and not jointly, to lend provide or cause to be provided debt financing to ASAC, the amounts set forth therein (the “Debt Financing” (proceeds of which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) andare to be used, together with the equity financing contemplated by the ASAC Equity Financing, Commitments to fund the “Financing”). Parent has also delivered Maximum Private Sale Price and to the Company a true, complete pay ASAC’s transaction fees and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respectexpenses. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters ASAC Equity Commitments and the Fee Letter contain all of the conditions precedent ASAC Debt Financing Commitments are referred to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, herein as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).the
Appears in 1 contract
Sources: Stock Purchase Agreement (Activision Blizzard, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Purchaser has delivered to the Company a Sellers true, complete, and correct and complete copy of copies of: (ia)(i) the executed commitment letter Credit Agreement (the “Equity Financing LetterLBC Credit Agreement”), dated as of the date hereof, among Parentbetween the Purchaser and LBC Credit Partners II, Merger Sub and the other parties thereto L.P., (collectively, the “Equity Financing SourcesLBC”), pursuant to which as administrative agent for the Equity Financing Sources have committedlenders listed in such Credit Agreement, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letterRevolving Credit and Term Loan Agreement (the “SunTrust Credit Agreement”), dated as of the date hereof, from between the Purchaser and SunTrust Bank (“SunTrust”), as issuing bank and administrative agent for the lenders listed in the SunTrust Credit Suisse Securities Agreement, (USAiii) LLCthe executed Business Loan Agreement (the “Iberiabank Credit Agreement”), ▇▇dated as of the date hereof, between the Purchaser and Iberiabank, (iv) the executed Consolidated and Restated Credit Agreement (the “Advantage Credit Agreement”), dated as of the date hereof, between the Purchaser and Florida Community Development Fund II, L.L.C., and Advantage Capital Community Development Fund XXX, L.L.C., and (v) certain Lease Agreements (collectively, the “Purchaser Lease Agreements”), dated as of the date hereof, between the Purchaser and (A) NL Ventures VIII University, L.L.C. with respect to the lease of real property located at ▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, Inc.▇▇▇▇▇▇▇, (B) NL Ventures VIII West Main, L.L.C. with respect to the lease of real property located at 189 ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, and The Bank (C) NL Ventures VIII Herald, L.L.C. with respect to the lease of Tokyo-Mitsubishi-UFJreal property located at 200 Herald Journal Blvd., Ltd. Spartanburg, South Carolina (the LBC Credit Agreement, the SunTrust Credit Agreement, the Iberiabank Credit Agreement, the Advantage Credit Agreement and the Purchaser Lease Agreements, collectively, the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing LettersAgreements”), pursuant to which which, upon the lenders party thereto have committed, terms and subject to the terms thereofconditions set forth therein, each party thereto (other than the Purchaser) has agreed to lend the amounts set forth therein (the “Debt Financing” ”) for the purpose of funding the transactions contemplated by this Agreement; and (which term shall includeii) the executed equity commitment letter, if applicable, high-yield bonds issued in lieu of certain dated as of the debt facilities as contemplated under date hereof (the Debt Commitment Letter) “Equity Financing Commitment” and, together with the Debt Financing Agreements, the “Financing Commitments”), between the Purchaser and ▇▇▇▇▇▇▇▇ Investment Holdings LLC (the “Fund”), pursuant to which, upon the terms and subject to the conditions set forth therein, the Fund has committed to invest the amount set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Parent None of the Financing Commitments has also delivered been amended or modified prior to the Company execution and delivery of this Agreement and the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. There are no other agreements, side letters or arrangements to which the Purchaser is a true, complete and correct copy party relating to any of any fee letter in connection with the Debt Commitment Letter (it being understood Financing Commitments that any such fee letter provided to could affect the Company may be redacted to omit availability of the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) Financing. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of and constitute the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent the Purchaser and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, Financing (including any “flex” provisions) other than as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements expressly set forth in the Financing Letters inaccurate Commitments. The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments will be sufficient for the Purchaser to pay the Cash Consideration and all related fees and expenses. No event has occurred which would result in any material respect. As breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by the date hereofPurchaser under the Financing Commitments, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has Purchaser does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Purchaser on the Closing Date. Parent The Purchaser has fully paid all commitment and Merger Sub have fully paid, or caused other fees required to be fully paid, any and all commitment or other fees which are due and payable paid on or prior to the date hereof pursuant to the terms Financing Commitments. The obligations of the Financing Letters. Other than Purchaser hereunder are not subject to any conditions regarding the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent ability of the Purchaser or any of its Affiliates is a party related Affiliate thereof to obtain financing for the funding or investing, as applicable, consummation of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Lettershereby.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (ia) the a fully executed commitment letter (the “Equity Financing Letter”), dated as of on or about the date hereofof this Agreement (together with all exhibits, among Parentannexes, Merger Sub schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the other parties thereto (collectivelydate of this Agreement in compliance with Section 5.10, the “Equity Financing SourcesCommitment Letter”), pursuant to which ) from the Equity Financing Sources have committedSponsor providing for an equity investment in Parent, subject to the terms thereofand conditions therein, to invest in cash in the cash amounts aggregate amount set forth therein (the “Equity Financing”) and (iib) the a fully executed commitment letter, letter and fee letter (other than any information to be redacted pursuant to the terms thereof) dated as of on or about the date hereofof this Agreement from the financial institutions identified therein (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from Credit Suisse Securities (USA) LLCtime to time after the date of this Agreement in compliance with Section 5.10, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingcollectively, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Commitment Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committedproviding, subject to the terms thereofand conditions therein, to lend for debt financing in the amounts set forth therein (being collectively referred to as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, none of the Financing Letters have not has been amended or modified modified, and, to the Knowledge of Parent, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Financing Letters such letters have been withdrawn withdrawn, terminated or rescinded in any respectrespect and, to the Knowledge of Parent, no such withdrawal, termination or rescission is contemplated. The Assuming (i) the Financing Lettersis funded in accordance with the Financing Letters and (ii) the satisfaction of the Offer Conditions, the net proceeds contemplated by the 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 Letter), will in the form so delivered aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Offer Price and Merger Consideration (and any repayment or refinancing of debt contemplated by this Agreement, the Equity Commitment Letter or the Debt Commitment Letter) 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 Expenses payable on the date hereofClosing Date by them in connection with the Transactions (such amount collectively, are in full force and effect as the “Required Amount”). As of the date hereof. The of this Agreement, the Financing Letters are (ix) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and thereto, (iiy) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent subject to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein Enforceability Exceptions and there are no other conditions precedent or other contingencies related to the funding of the (z) in full amount of the Financingforce and effect. As of the date of this Agreement, no event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Parent or Merger SubSub or, as applicable, or to the Knowledge of Parent, any other parties thereto, thereto under the Financing Letters Equity Commitment Letter or that makes any of the assumptions Debt Commitment Letter. Assuming satisfaction or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction waiver of the conditions set forth in Article VI to Parent’s and Merger Sub’s obligations to consummate the Offer and the performance by the Company of its obligations under this AgreementMerger, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated precedent set forth in the Financing Letters will not be satisfied or that the Financing Required Amount will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent 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 The only conditions precedent (including the market “flex” provisions) related to the date hereof pursuant to the terms obligations of the Guarantor to fund the full amount of the Equity Financing Letters. Other than and the Fee Letter and as lenders to fund the full amount of the Debt Financing are those expressly set forth in Schedule 3.10(c)the Equity Commitment Letter and the Debt Commitment Letter, there 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 any of its Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth contained in the Financing Letters.
(d) As of Letters delivered to the Company prior to the date hereof, none of Parent, Merger Sub or this Agreement that would (A) impair the enforceability of any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
, (eB) As reduce the aggregate amount of any portion of the date hereof, neither Parent nor Merger Sub has Financing (i) retained any financial advisor on a basis exclusive including by increasing the amount of fees to Parent be paid or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating original issue discount as compared to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) fees and (ii), in connection with the Merger or the other transactions original issue discount contemplated by the Financing Letters on the date of this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, ) such that the aggregate amount of the Financing would be a breach ofbelow the amount required to pay the Required Amount, (C) impose new or would cause additional conditions precedent to be untruethe Financing, (D) otherwise adversely modify any of the representations in this Section 3.10(e)conditions precedent to the Financing or (E) reasonably be expected to prevent, impair or delay the consummation of the Financing.
Appears in 1 contract
Sources: Merger Agreement (Air Methods Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies, as of the date of this Agreement, of (i) the an executed commitment letter (the “Equity Financing Funding Letter”)) from Green Equity Investors V, dated as of the date hereofL.P. and Green Equity Investors Side V, among Parent, Merger Sub and the other parties thereto L.P. (collectively, collectively the “Equity Financing SourcesProviders” and each an “Equity Provider”)) to each purchase for cash, pursuant to which the Equity Financing Sources have committed, in each case subject to the terms thereofand conditions therein, to invest equity securities of Parent in the cash amounts aggregate amount set forth therein (being collectively referred to as the “Equity Financing”) ), and (ii) the executed commitment letter, dated as of letters and Redacted Fee Letter from the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. financial institutions identified therein (the “Debt Commitment LetterLetters” and, together with the Equity Financing Funding Letter, the “Financing Letters”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend debt financing in the amounts set forth therein (being collectively referred to as the “Debt Financing” (which term shall include”, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, Financing collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, none of the Financing Equity Funding Letter or the Debt Commitment Letters have not has been amended or modified modified, no such amendment or modification is contemplated, and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Financing Letters, Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the form so delivered Equity Funding Letter and the Debt Commitment Letters that are payable on or prior to the Company on the date hereof, and the Financing Letters are in full force and effect as of and are the date hereof. The Financing Letters are (i) legal, valid valid, binding and binding enforceable obligations of Parent and Merger Sub, as applicable, and, with respect to the Knowledge of ParentEquity Funding Letter, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger SubGuarantors, as applicablethe case may be, and, subject to the Knowledge of Parent, each Bankruptcy and Equity Exception. As of the other parties theretodate hereof, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 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 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 the Debt Commitment Letters, as applicable, (ii) the accuracy in all material respects of the representations and warranties set forth in Article 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 5.1, as of the date hereof, the net proceeds contemplated by the Equity Funding Letter and the Debt Commitment Letters will, together with Company cash, in the aggregate, be sufficient to pay the aggregate Merger Consideration and Designated Consideration (and any repayment or refinancing of debt contemplated by this Agreement or the Financing Letters) and any other amounts required to be paid by Parent and Merger Sub in connection with the consummation of the Transactions. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters Equity Funding Letter or the Debt Commitment Letters; provided that makes Parent is not making any representation or warranty regarding the effect of the assumptions or statements set forth inaccuracy of the representations and warranties in the Financing Letters inaccurate in any material respectArticle III. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and or Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than Closing; provided that Parent is not making any representation regarding the Fee Letter accuracy of the representations and as warranties set forth in Schedule 3.10(c)Article III, or compliance by the Company of its obligations hereunder. As of the 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 funding or investing, as applicable, of the full amount of the Financing other than (i) as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lockany customary engagement letter(s) and non-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposaldisclosure 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 contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any aggregate amount of the representations in this Section 3.10(e)Financing.
Appears in 1 contract
Sources: Merger Agreement (Jo-Ann Stores Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all As of the other payment obligations date of Parentthis Agreement, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered has provided to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”)copies, dated as of the date hereofof this Agreement, among Parent, Merger Sub and of (i) the other parties thereto (collectively, Equity Commitment Letter from the “Equity Financing Sources”)Investors, pursuant to which the Equity Financing Sources have committedInvestors have, severally (and not jointly) committed to provide, subject only to the terms thereofand conditions contained therein, to invest the cash amounts set forth therein funds (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, Letters from the Debt Financing Sources party thereto (together with the Equity Financing Commitment Letter, the “Financing Letters”), ) pursuant to which the lenders party thereto such Debt Financing Sources have committedcommitted to provide, subject only to the terms thereofand conditions therein, to lend the debt financing in the amounts set forth therein (the debt financing contemplated by the Debt Commitment Letters being collectively referred to as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) ”; and, together with the Equity Financing, the “Financing”). As of the date of this Agreement, there are no other side letters or agreements to which Parent has also delivered or Merger Subsidiary is a party relating to the Company a trueFinancing other than as expressly set forth in the Financing Letters. As of the date of this Agreement, complete (A) each Financing Letter, in the form provided to the Company, (i) has not been amended, supplemented, terminated, rescinded or modified (and correct copy no waiver of any fee letter provision thereof has been granted) and, to the knowledge of Parent, no such amendment, supplement, termination, rescission or modification is contemplated (other than to add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed the Debt Commitment Letters as of the date of this Agreement), and (ii) is a legal, valid and binding obligation of Parent, Merger Subsidiary and, to the knowledge of Parent, the Investors and the applicable Debt Financing Sources, is in full force and effect, and is enforceable in accordance with the terms thereof against Parent, Merger Subsidiary and, to the knowledge of Parent, the Investors and the applicable Debt Financing Sources, subject, in each case, to the Bankruptcy and Equity Exceptions, and (B) no event has occurred (and no event is reasonably expected to occur) which would reasonably be expected to result in any breach of or constitute a default under (or an event which with notice or lapse of time or both would result in any breach of or constitute a default under) or reasonably be expected to result in a failure to satisfy a condition precedent, in each case, on the part of Parent, Merger Subsidiary or the Investors or would reasonably be expected to permit any party to such Financing Letter to terminate, or to not make the initial funding in an amount required to satisfy the Required Amount under, such Financing Letter. As of the date of this Agreement, assuming the conditions set forth in Annex A and Section 9.01 have been satisfied (other than those conditions that by their terms are to be satisfied at the Offer Expiration Time or the Closing, as applicable, but subject to such conditions being able to be satisfied) or waived by the Closing, Parent does not have any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that (subject to the satisfaction of such conditions) the full amount of the Debt Financing contemplated by the Debt Commitment Letters to be funded on the Closing Date will not be available to Parent or Merger Subsidiary on the Closing Date.
(b) Assuming the Financing is funded or invested in accordance with the Financing Letters, Parent and Merger Subsidiary will have on the Closing Date funds sufficient to pay the aggregate Offer Price and Merger Consideration (the “Aggregate Consideration”), any other amounts required to be paid by Parent or Merger Subsidiary on the Closing Date in connection with the Debt Commitment Letter consummation of the transactions contemplated hereby (it being understood that including all amounts payable pursuant to Section 2.07) and any fees and expenses of or payable by Parent or Merger Subsidiary on the Closing Date in connection with the transactions contemplated hereby (such fee letter provided to amount collectively, the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee LetterRequired Amount”).
(c) As of the date hereofof this Agreement, the each Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are Letter (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain contains all of the conditions precedent to the obligations of the parties thereunder Investors and the applicable Debt Financing Sources to make the Financing applicable portion of the Required Amount available to Parent and Merger Subsidiary on the terms set forth therein and there are no other conditions precedent (ii) does not contain any contingencies that would permit the applicable Investor or other contingencies related applicable Debt Financing Source to reduce, or rescind its obligation to provide, the funding of the full total amount of the FinancingFinancing below the amount required to pay the Required Amount. As of the date of this Agreement, no the obligations and commitments contained in the Financing Letters have not been withdrawn or rescinded in any respect. Each of Parent and Merger Subsidiary, as applicable, has fully paid, or caused to be fully paid, any and all commitment fees or other fees to the extent required to be paid on or prior to the date hereof in connection with the Financing.
(d) The Equity Commitment Letter provides, and will continue to provide, that the Company is an express third party beneficiary of the Equity Commitment Letter and, subject to Section 11.14, the Company is (on its own behalf and on behalf of the Company’s stockholders) entitled to enforce, directly or indirectly, the Equity Commitment Letter in accordance with its terms against the Investors.
(e) Parent and Merger Subsidiary acknowledge and agree that it is not a condition to the Closing or to any of the other obligations under this Agreement that Parent and Merger Subsidiary obtain financing for or relating to the transactions contemplated hereby.
(f) Concurrently with the execution of this Agreement, Parent has delivered to the Company a true, correct and complete copy of the duly executed limited guarantee of the Investors, dated as of the date of this Agreement, in favor of the Company, pursuant to which the Investors have guaranteed the full amount of the Parent Termination Fee, all the fees and expenses payable by Parent or Merger Subsidiary pursuant to this Agreement and all liabilities and damages payable by Parent or Merger Subsidiary pursuant to Section 11.05 (the “Limited Guarantee”). The Limited Guarantee is (a) a legal, valid and binding obligation of the Investors, (b) enforceable against the Investors in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception and (c) in full force and effect. 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, Investors under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersLimited Guarantee.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. Parent has delivered to the Company true, complete and correct copies of an executed commitment letter from Golden Gate Capital Opportunity Fund, L.P. (a) The aggregate amount of funds contemplated to be provided the “Equity Financing Commitment”), pursuant to which the investors party thereto have committed, subject to the terms and conditions set forth therein, to invest in Parent the cash amounts set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses (the “Equity Financing”). The Equity Financing Letters Commitment has not been amended or modified prior to the date of this Agreement and as of the date of this Agreement no such amendment or modification is contemplated. As of the date of this Agreement, (i) the commitments contained in the Equity Financing Commitment have not been withdrawn or rescinded in any respect, and (ii) the Equity Financing Commitment is in full force and effect and is the legal, valid, binding and enforceable obligations of Parent and Merger Sub, as defined below)the case may be, and, to the knowledge of Parent or Merger Sub, each of the other parties thereto. Assuming the Equity Financing is funded in accordance with the Equity Financing Commitment and together with the cash on hand of Company’s Freely Available Cash (including, without limitation, the Company Cash Deposit), Parent and its Subsidiaries, is sufficient, if funded, Merger Sub will have at and after the Closing funds sufficient to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; Merger Consideration, (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Equity Financing; , and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (Tollgrade Communications Inc \Pa\)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent has received and its Subsidiaries, is sufficient, if funded, to accepted (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the an executed commitment letter (the “Equity Financing Letter”), dated as of the date hereofhereof from the agents, among Parentarrangers, Merger Sub lenders and the other parties entities party thereto (collectively, the “Equity Financing SourcesLenders”), ) pursuant to which the Equity Financing Sources Lenders have committed, subject to the terms and conditions thereof, to invest provide the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend debt financing in the amounts set forth therein (the “Debt Financing”) for the purpose of funding the Transactions and the related fees and expenses thereto, together with the fee letter (the “Fee Letter”) related thereto (with customary redactions for fee amounts, pricing, other economic terms, thresholds, caps, pricing caps and “market flex” related solely to economic terms) (which term shall includeincluding all exhibits, if applicableschedules, high-yield bonds issued in lieu and annexes thereto, and the redacted Fee Letter associated therewith, collectively, the “Debt Commitment Letter”), and (ii) executed equity commitment letters, each dated as of the date hereof (the “Equity Commitment Letters” and, collectively with the Debt Commitment Letter, the “Commitment Letters”) from Durational ▇▇▇▇▇▇, ▇▇ (“Durational”), The Resolute Fund IV, L.P. (“Resolute”) and TEI Investment Pte. Ltd. (“TEI”, collectively with Durational and Resolute, the “Sponsors”) and certain of its or their Affiliates (collectively, any such Affiliates that executed an Equity Commitment Letter together with the debt facilities Sponsors, the “Equity Investors”), pursuant to which the Equity Investors have agreed, subject to the terms and conditions thereof, to invest, directly or indirectly through one or more parent companies of Parent, in Parent the amount set forth therein (the “Equity Financing”). Each Equity Commitment Letter expressly provides that the Company is a third-party beneficiary thereof to the extent set forth therein, and the Company is entitled to enforce, directly or indirectly, such Equity Commitment Letter in accordance with its terms against the applicable Equity Investor. The Debt Financing pursuant to the Debt Commitment Letter and the Equity Financing pursuant to the Equity Commitment Letters are collectively referred to in this Agreement as the “Financing.” Merger Sub has delivered to the Company true, complete and correct copies of the executed Commitment Letters and Fee Letter (with only fee amounts, “market flex” provisions and other economic terms redacted in such Fee Letter).
(b) Except as expressly set forth in the Commitment Letters, there are no conditions precedent or other contingencies to the obligations of the Lenders to fund the Debt Financing in accordance with the terms of the Debt Commitment Letter or to the obligations of the Equity Investors to fund the full amount of the Equity Financing in accordance with the terms of the Equity Commitment Letters. Assuming satisfaction of the conditions set forth in Article VII, Parent and Merger Sub do 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 Merger Sub at the Effective Time.
(c) Assuming (i) the satisfaction of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at Closing), and (ii) the funding of the Financing in accordance with the applicable Commitment Letters, the aggregate net proceeds of the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges under the Commitment Letters and the Fee Letter and including after giving effect to the maximum amount of flex, including original issue discount flex, contemplated under by the Debt Commitment Letter) andshall provide Merger Sub with cash proceeds at the Effective Time sufficient, together when combined with the Equity FinancingSurviving Company’s and Merger Sub’s other cash on hand, for Merger Sub and the “Financing”). Parent has also delivered Surviving Company to pay the Company a trueaggregate Merger Consideration, complete and correct copy any prepayment, repayment, refinancing or conversion of debt contemplated by this Agreement, any fee letter other amounts required to be paid in connection with the Debt Commitment Letter consummation of the Transactions (it being understood that including all amounts payable pursuant to Section 2.04) and any such fee letter provided to fees and expenses of or payable by Parent or Merger Sub in connection with the Company may be redacted to omit Transactions and the numerical amounts provided therein) Financing (any such fee letter, a the “Fee LetterRequired Amount”).
(cd) As of the date hereof, the Financing The Commitment Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) are legal, valid and binding obligations of Parent and Merger Sub, as applicable, andSub and (in the case of the Debt Commitment Letter, to the Knowledge knowledge of Parent, Parent and Merger Sub) of each of the other parties thereto (subject, to the effect of any Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating to or affecting creditors’ rights generally, and (ii) 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, date hereof are in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium full force and other similar laws affecting or relating to creditors’ rights generallyeffect. The Financing Letters and Assuming the Fee Letter contain all satisfaction 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 precedent or other contingencies related to the funding of the full amount of the Financing. As set forth in Article VII, as of the date of this Agreementhereof, no event has occurred or circumstance exists whichthat, with or without notice, lapse of time time, or both, would or would reasonably be expected to (x) constitute a default or breach on the part of Parent or Merger SubSub under the terms and conditions of the Commitment Letters, as applicable(y) result in a failure of any condition of the Commitment Letters, or (z) result in any portion of the Financing being unavailable in an amount equal to the Knowledge Required Amount at the Effective Time. Parent is not aware of Parent, any other parties thereto, under the Financing Letters fact or occurrence that makes any of the assumptions assumptions, or statements set forth the representations or warranties of Parent or Merger Sub, in any of the Financing Commitment Letters inaccurate in any material respect. Parent or Merger Sub has paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Commitment Letters on or before the date of this Agreement. As of the date hereof, and subject to the satisfaction none of the conditions set forth in Article VI Commitment Letters have been modified, amended or altered, and none of the performance by the Company of its obligations commitments under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to Commitment Letters have been withdrawn, terminated, amended, modified or rescinded in any respect. Except for the Financing contemplated Commitment Letters delivered in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 form pursuant to the terms of the Financing Letters. Other than Section 4.09(a), the Fee Letter and as set forth in Schedule 3.10(c)any customary engagement letters and non-disclosure agreements and customary arrangements among the Equity Investors that do not impact the conditionality or amount of the Financing, 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 funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party related to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee the Financing that could affect the availability of the Company or its Subsidiaries) concerning Financing in any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Lettersrespect.
(e) As In no event shall the receipt or availability of any funds or financing (including, for the date hereofavoidance of doubt, neither Parent nor the Financing) by Parent, Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented Affiliate or (ii) entered into an exclusivity, lock-up any other financing or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services transactions be a condition to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent Parent’s or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)’s obligations hereunder.
Appears in 1 contract
Sources: Merger Agreement (Bojangles', Inc.)
Financing. Parent has delivered to the Company true, complete and correct copies of (a) The aggregate amount the executed commitment letter, dated as of funds contemplated the date hereof, between Parent and the financial institutions party thereto (including all exhibits, schedules, and annexes thereto, and the executed fee letter associated therewith and referenced therein (except that the fee letter is subject to redactions further described below), as may be provided amended or modified in accordance with the terms hereof, collectively, the “Debt Financing Commitments”), pursuant to which the lenders thereto have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein (the “Debt Financing”) for the purposes of funding the transactions contemplated by this Agreement, and related fees and expenses and the refinancing of certain outstanding indebtedness of the Company and (b) the executed commitment letter, dated as of the date hereof, from the Guarantor (including all exhibits, schedules and annexes thereto, the “Equity Financing Letters (as defined below)Commitment”, and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which the Guarantor has committed, subject to the terms and conditions set forth therein, to invest the cash amount set forth therein (the “Equity Financing”, and, together with the Debt Financing, the “Financing”). The Equity Financing Commitment provides that the Company is a third-party beneficiary thereof, subject to the terms and conditions set forth therein and herein. None of the Financing Commitments has been amended or modified prior to the date of this Agreement, as of the date of this Agreement no such amendment or modification is contemplated by Parent or, to the knowledge of Parent, any other party thereto (other than, for the avoidance of doubt, amendments to the Debt Financing Commitments solely to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto), and as of the date of this Agreement the respective commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect by Parent, or, with respect to the Debt Financing Commitment, to the knowledge of Parent, any other party thereto. Except for fee letters (complete copies of which have been provided to the Company, with only fee amounts, “market flex” and other economic terms or commercially sensitive information redacted), as of the date hereof there are no side letters or Contracts to which Parent or Merger Sub is a party related to the funding or investing, as applicable, of the Financing or the transactions contemplated hereby other than as expressly set forth in the Financing Commitments delivered to the Company on hand or prior to the date hereof and except for any agreements among the Guarantor and Parent which do not affect the availability of the Equity Financing. Parent has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof. As of the date hereof, the Financing Commitments are in full force and effect with respect to, and are the legal, valid, binding and enforceable obligations of, Parent and Merger Sub, as the case may be, and, to the knowledge of Parent and its SubsidiariesMerger Sub, is sufficienteach of the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, if fundedother than as expressly set forth in the Financing Commitments delivered to the Company on or prior to the date hereof. As of the date hereof, assuming the accuracy of the representations and warranties in ARTICLE IV, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to (i) pay constitute a default or breach on the aggregate Per Share Price and part of Parent or Merger Sub or, to the knowledge of Parent or Merger Sub, any other repayment party thereto under any of the Financing Commitments, (ii) constitute a failure to satisfy a condition precedent on the part of Parent or refinancing Merger Sub or any other party thereto under the Financing Commitments or (iii) result in any portion of Indebtedness the Financing Commitments being unavailable on the Closing Date. As of the date hereof, assuming the accuracy of the representations and warranties in ARTICLE IV, Parent has no reason to believe that any of the conditions to the Financing contemplated by the Financing Letters; Commitments applicable to it will not be satisfied or that the Financing will not be made available to Parent on the Closing Date. Assuming the Financing is funded in accordance with the Financing Commitments and the accuracy of the representations and warranties set forth in Section 4.3, Parent and Merger Sub will have on the Closing Date funds sufficient to (iiA) pay the aggregate Offer Price and the other payments under ARTICLE II and ARTICLE III, (B) pay any and all fees and expenses required to be paid under this Agreement by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; , (C) pay for any refinancing of any outstanding indebtedness of the Company or its subsidiaries contemplated by this Agreement and (iiiD) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered hereunder to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing DateClosing. Each of Parent 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 affirms that it is not a condition to the date hereof pursuant to Offer or the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent Closing 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, obligations under this Agreement that Parent or Merger Sub in connection with obtain the Merger and/or Financing or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive financing for or related to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)transactions contemplated hereby.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (iSection 5.07(a) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) disclosure letter delivered by Parent and Merger Sub have delivered to the Company a true, correct and complete copy immediately prior to the execution of (i) the executed commitment letter this Agreement (the “Equity Financing Parent Disclosure Letter”)) sets forth true, dated as accurate and complete copies of the date hereofexecuted commitment letters, among Parent, Merger Sub and the other parties thereto (collectivelyrelated term sheets, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) market flex and (ii) the executed commitment letter, dated as of the date hereof, securities demand letter and fee letters from Credit Suisse Securities (USA) Jefferies Funding LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ & Company, Inc., Jefferies Finance LLC and ▇▇▇▇▇▇▇▇▇ Fargo Foothill, Inc.LLC (collectively, and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing LettersCommitments”), pursuant to which the lenders party thereto have committedagreed, subject only to the terms thereofand conditions set forth therein, to lend provide or cause to be provided to Parent and/or Merger Sub debt financing in the amounts set forth therein for the purposes of financing the Transactions and related fees and expenses and the other purposes set forth therein (the “Debt Financing” ”).
(which term shall include, if applicable, high-yield bonds issued in lieu of certain b) Section 5.07(b) of the debt facilities as contemplated under Parent Disclosure Letter sets forth a true, accurate and complete copy of an executed equity commitment letter (the Debt “Equity Commitment Letter) ” and, together with the Debt Financing Commitments, the “Financing Commitments”), dated as of the date of this Agreement, for ▇▇▇▇▇▇▇▇, pursuant to which ▇▇▇▇▇▇▇▇ has committed to contribute to Parent that number of Shares (which Shares will be cancelled in the Merger as provided in Section 3.01(b)) and the other assets set forth in such letter in exchange for Equity Interests in Parent immediately prior to the Effective Time (the “Equity Financing” and, together with the Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(c) As of the date hereofof this Agreement, the Financing Letters have not been amended or modified and (i) none of the Financing Commitments have been amended, supplemented or modified, in any respect, and (ii) the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn withdrawn, terminated or rescinded rescinded, in any respect. The Each of the Financing LettersCommitments, in the form so delivered to the Company on the date hereofdelivered, are is (x) in full force and effect as of the date hereof. The Financing Letters are hereof and (iy) legal, a valid and binding obligations obligation of Parent and Parent, Merger SubSub and/or ▇▇▇▇▇▇▇▇, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge of Parent’s knowledge, each of the other parties thereto. 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 each case except as such enforceability may the Financing Commitments. No event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent or Merger Sub under any term or condition of the Financing Commitments. Parent is unaware of any fact or occurrence existing on the date hereof that (with or without notice, lapse of time, or both) would reasonably be limited expected to (w) make any of the assumptions or any of the statements set forth in the Financing Commitments inaccurate in any material respect, (x) result in any of the conditions in the Financing Commitments not being satisfied, (y) cause any of the Financing Commitments to cease to be in full force and effect, or (z) otherwise result in the funding contemplated by applicable bankruptcythe Financing Commitments not being available by the Outside Date in order to consummate the Transactions. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyif any. The Financing Letters and the Fee Letter Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make the Debt Financing available to Parent and/or Merger Sub on the terms therein and there are no other conditions precedent or other contingencies related therein. Subject to the funding terms and conditions of each of the full amount of the Financing. As of the date of Financing Commitments and this Agreement, no event has occurred or circumstance exists whichthe aggregate proceeds contemplated by the Financing Commitments, with or without notice, lapse including the number of time or both, would or would reasonably Shares to be expected contributed to constitute a default or breach on the part of Parent or Merger Sub, as applicable, or immediately prior to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject Effective Time pursuant to the satisfaction Equity Commitment Letter, together with the cash on hand of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior the Effective Time, will be sufficient to pay the Closing Date. Parent aggregate Merger Consideration and Merger Sub have fully paid, or caused any other amounts required 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub paid in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As consummation of the date hereofTransactions, neither Parent nor Merger Sub has (i) retained to make any financial advisor on a basis exclusive to Parent repayment or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider refinancing of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including indebtedness contemplated in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) Transactions and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)pay all related fees and expenses.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the duly executed commitment letter, dated as of the date hereofAgreement Date, from Credit Suisse Securities the Financing Sources (USAtogether with all exhibits, annexes, schedules and attachments thereto, the “Debt Commitment Letter” and together with the Redacted Fee Letter, the “Debt Commitment Papers”) LLCand the Redacted Fee Letter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.pursuant to which, and The Bank subject to the terms and conditions thereof, the Financing Sources have committed to lend the amounts set forth therein to Parent and Merger Sub for the purpose of Tokyo-Mitsubishi-UFJ, Ltd. funding the Transactions (the “Debt Financing”), and (ii) the duly executed equity commitment letter, dated as of the Agreement Date (the “Equity Commitment Letter” and, together with the Equity Financing LetterDebt Commitment Papers, the “Financing LettersCommitments”)) from certain funds affiliated with Siris Capital Group, LLC (“Sponsor”) pursuant to which the lenders party thereto have committedwhich, and subject to the terms and conditions thereof, Sponsor has caused such funds to lend commit to invest the amounts set forth therein solely for the purpose of funding the Transactions (the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Debt Financing, the “Financing”). Parent has also delivered The Equity Commitment Letter provides, and will continue to provide until such time as this Agreement is terminated, that the Company is a third party beneficiary thereof to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided extent set forth therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereofAgreement Date, each of the Financing Letters have not been amended or modified Commitments (and none each of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are therein) is in full force and effect as and, has not been withdrawn, terminated or rescinded in any respect or otherwise amended, supplemented or modified in any respect, and, to Parent’s Knowledge, no such withdrawal, termination, rescission, amendment, supplement or modification is presently contemplated (other than amendments, modifications or terminations that are permitted by Section 4.15). Assuming the due authorization, execution and delivery by each other party thereto, each of the date hereof. The Financing Letters are (i) Commitments is a legal, valid and binding obligations obligation of Merger Sub and Parent and (in the case of the Debt Commitment Papers only, to the Knowledge of Merger Sub and Parent), the other parties thereto, subject to applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and similar laws of general applicability relating to or affecting creditors’ rights or by general equity principles. Except for the Financing Commitments in the form delivered pursuant to Section 3.9(a) and the Redacted Fee Letter, as of the Agreement Date, there are no side letters or other agreements, contracts or arrangements relating to the Financing or the Financing Commitments that could affect the conditionality or availability of the Financing, to which Merger Sub, Parent, Sponsor or any of their respective Affiliates is a party. Assuming the satisfaction of the conditions set forth in Sections 5.1 and 5.3, the accuracy of the representations and warranties in Article II in all material respects, the compliance and performance by the Company of its covenants and agreements set forth in this Agreement in all material respects, to the Knowledge of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and Agreement Date, (iii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, no event has occurred or circumstance exists which, with or without notice, lapse of time or both, would or would reasonably be expected to (w) make any of the assumptions or any of the statements set forth in the Financing Commitments inaccurate in any material respect, (x) constitute a default or breach on the part of Parent or Merger Sub, as applicableParent or Sponsor and (in the case of the Debt Commitment Papers only, or to the Knowledge of Merger Sub and Parent, ) any of the other parties thereto, under any term of the Financing Letters Commitment, (y) result in a failure of any condition of the Financing Commitments or otherwise cause the Financing Commitments to be ineffective, or (z) result in any portion of the Financing contemplated thereby to not be available at the Closing in an amount equal to the Required Amount. Assuming the satisfaction of the conditions set forth in Sections 5.1 and 5.3, the accuracy of the representations and warranties in Article II in all material respects, and the compliance and performance by the Company of its covenants and agreements set forth in this Agreement in all material respects, none of Merger Sub, Parent or Sponsor has any reason to believe that any of the conditions to the Financing will not be satisfied or that any of Merger Sub, Parent or Sponsor will be unable to satisfy on a timely basis all terms and conditions to be satisfied by it in any of the Financing Commitments on or prior to the Closing Date, (iii) none of Merger Sub, Parent or Sponsor has any reason to believe that the full amount of the Financing will not be available to Merger Sub on the date of the Closing and (iv) none of Merger Sub, Parent or Sponsor have Knowledge that any of the Financing Sources will not perform their respective obligations under the Financing Commitments or of any fact, occurrence or condition that makes any of the assumptions or statements set forth in the Financing Letters Commitments inaccurate in any material respect. As of .
(c) Assuming (i) the date hereof, Financing is funded in accordance with the applicable Financing Commitments and subject to (ii) the satisfaction of the conditions set forth in Article VI and to Parent’s obligation to consummate the performance Merger (other than those conditions that by their nature are to be satisfied at Closing), the aggregate net proceeds of the Financing (including after giving effect to the maximum amount of flex, including original issue discount flex, contemplated by the Company Debt Commitment Papers), when combined with Parent’s and Merger Sub’s other sources of its funds, will be sufficient for the satisfaction of all of Merger Sub’s and Parent’s obligations under this AgreementAgreement to be satisfied at or after Closing on the terms contemplated hereby and under the Financing Commitments, neither Parent nor Merger Sub has any reason to believe that any including the payment of the conditions aggregate Merger Consideration pursuant to Section 1.8, amounts to be paid pursuant to Section 1.6, the Financing contemplated payment of all associated fees, costs and expenses and all other amounts, in the Financing Letters will not each case, required to be satisfied paid by Parent or that the Financing will not be made available to Parent and Merger Sub at Closing pursuant to this Agreement, with respect to Merger and the Financing or prior the Transactions, including any repayment or refinancing of Indebtedness of the Company and the Company Subsidiaries required in connection therewith and giving effect to the Closing Datemaximum amount of flex, including original issue discount flex, contemplated by the Debt Commitment Papers (the “Required Amount”). Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment There are no conditions precedent or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party contingencies related to the funding or investing, as applicable, of the full amount of the Financing in an amount equal to the Required Amount or that would permit the parties thereunder to reduce the total amount of the Financing to an amount less than the Required Amount, in each case other than as expressly set forth in the Financing LettersCommitments. Each of Merger Sub and Parent have paid in full any and all commitment fees or other fees required to be paid pursuant to the terms of the Financing Commitments on or before the Agreement Date.
(d) As Each of Parent and Merger Sub affirms that it is not a condition to Closing under this Agreement (including the payment by Parent and Merger Sub of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its SubsidiariesRequired Amount) concerning any investments to be made in, or contributions to be made to, that Parent or Merger Sub obtains Debt Financing (including, without limitation, as contemplated in connection with the Merger and/or Debt Commitment Letter for or related to any other of the transactions contemplated by this Agreement other than as herein, but acknowledging that the Company’s right to specific performance to cause the Equity Financing to be funded under the Equity Commitment Letter is subject to the conditions set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction ProposalSection 7.6(a), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
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Financing. (a) The aggregate Assuming (i) the Financing is funded in accordance with the Financing Letters and (ii) the satisfaction of the conditions set forth in paragraphs (c)(ii) and (c)(iii) of Annex I, the amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with will be sufficient at and following the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, Expiration Date to (iA) pay the aggregate Per Offer Price, the aggregate consideration in respect of the Series A Share Price Purchase, the aggregate Merger Consideration and any other repayment or refinancing the consideration provided herein in respect of Indebtedness contemplated by Company Options and Company RSUs, (B) pay the Financing Letters; Top-Up Par Value Payment and (iiC) pay any and all fees and expenses expenses, and satisfy all other payment obligations, required to be paid or satisfied by ParentParent or Purchaser, Merger Sub and or, following the Effective Time, the Surviving Corporation Company, in connection with the Merger Transactions and the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies of (i) the an executed commitment letter letter, dated the date hereof, between Parent, Purchaser and the Guarantor (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have Guarantor has committed, upon the terms and subject only to the terms thereofconditions set forth therein, to invest make an investment in Purchaser in cash in the cash amounts aggregate amount set forth therein (the “Equity Financing”) and (ii) the an executed commitment letterletter and Redacted Fee Letter, each dated as of the date hereof, from Credit Suisse Securities between Parent, Purchaser and the financial institution identified therein (USAthe “Lender”, and, together with its Affiliates and Representatives and successors and assigns, the “Debt Financing Sources”) LLC(collectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), ) pursuant to which the lenders party thereto Debt Financing Sources have committed, upon the terms and subject only to the terms thereofconditions set forth therein, to lend provide debt financing to Parent or Purchaser in the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the such debt facilities as contemplated under the Debt Commitment Letter) and, together financing solely with the Equity Financing, the “Financing”). Parent has also delivered respect to the Company a trueTransactions, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).the
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Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together Concurrently with the cash on hand execution of Parent and its Subsidiariesthis Agreement, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Investor has delivered to the Company a true, correct and complete copy copies of (i) the an executed commitment letter letter, dated the date hereof (the “Equity Financing Commitment Letter”), dated as of the date hereoffrom ▇▇▇▇▇▇▇, among ParentDubilier & Rice Fund VII, Merger Sub and the other parties thereto L.P. (collectively, the “Equity Financing SourcesFund”), pursuant ) to which provide equity financing in an aggregate amount of $575 million to fund the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein Purchase Price (the “Equity Financing”) and ), (ii) the an executed commitment letter, dated as of the date hereofhereof (the “Debt Commitment Letter”), from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Corporation and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital, a division of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Business Financial Services Inc., to provide ▇▇▇▇▇, Inc., and The Bank New ▇▇▇▇▇ and/or one or more of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein their respective Subsidiaries $1.85 billion in debt financing (the “Debt Financing” and the Debt Financing together with the Equity Financing being collectively referred to as the “Financing”) and (which term shall include, if applicable, high-yield bonds issued in lieu of certain iii) an executed copy of the debt facilities as contemplated under Limited Guarantee. Subject to the terms and conditions of the Equity Commitment Letter and the Debt Commitment Letter) and, together the Financing, when funded in accordance with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete Commitment Letter and correct copy of any fee letter in connection with the Debt Commitment Letter Letter, will provide financing sufficient to pay the Cash Distribution, all other amounts called for to be paid or repaid under Section 6.14 (it being understood that any such fee letter provided whether payable on or after the Closing), the fees and expenses of the Transactions to be borne by ▇▇▇▇▇ and New ▇▇▇▇▇ pursuant to Section 6.6, the Company may be redacted to omit Transaction Fee and all of Investor’s fees and expenses associated with the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) Transactions. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, Equity Commitment Letter in the form so delivered is, and to the Company on Knowledge of Investor, the date hereofDebt Commitment Letter and the Limited Guarantee are valid, are binding and in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 Investor under any term or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any condition of the assumptions Equity Commitment Letter, the Debt Commitment Letter or statements the Limited Guarantee. There are no conditions precedent or other contractual contingencies to Investor’s right to require the funding of the full amount of the Financing, other than as set forth in or contemplated by the Financing Letters inaccurate in any material respectEquity Commitment Letter or the Debt Commitment Letter. As of the date hereofof this Agreement, and subject to assuming the satisfaction accuracy of the conditions representations set forth in Article VI Sections 4.2, 4.3 and the performance by the Company of its obligations under this Agreement4.4, neither Parent nor Merger Sub has Investor does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at Investor or prior to the Closing Date. Parent and Merger Sub have fully paidNew ▇▇▇▇▇, ▇▇▇▇▇ or caused to be fully paid, any and all commitment one or other fees which are due and payable on or prior to the date hereof pursuant to the terms more of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party related to the funding or investingtheir Subsidiaries, as applicable, of on the full amount of the Financing other than as expressly set forth in the Financing LettersClosing Date.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
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Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereofJuly 22, from 2007, between Parent and Bank of America, N.A., Banc of America Bridge LLC, Banc of America Securities LLC, Credit Suisse, Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal ▇▇▇▇▇▇ Brothers Inc., ▇▇▇▇▇▇ Brothers Commercial Bank and ▇▇▇▇▇▇ Brothers Commercial Paper Inc. (the “Debt Financing Commitments”), pursuant to which Bank of CanadaAmerica, RBC Capital MarketsN.A., SunTrust BankBanc of America Bridge LLC, SunTrust ▇▇Credit Suisse, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Senior Funding, Inc., ▇▇▇▇▇▇ Brothers Commercial Bank and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto ▇▇▇▇▇▇ Brothers Commercial Paper Inc. have committed, subject to the terms thereof, agreed to lend the amounts (which may include up to $4,000,000,000 in bridge financing (the “Bridge Financing”) to be utilized in the event the placem ent of high yield securities in a comparable amount (the “High Yield Financing”) is not consummated) 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 July 22, 2007, between Parent and Cerberus Capital Management, L.P. (the “Equity Financing Commitments” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which Cerberus Capital Management, L.P. has committed to invest the amount set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As None of the date hereof, the Financing Letters have not Commitments has been amended or modified prior to the date of this Agreement, and none of the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of and constitute the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge each of Parent, each of the other parties thereto Merger Sub and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Commitments or that relate to market “flex” provisions. The aggregate proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments will be sufficient for Parent and the Surviving Corporation to pay the aggregate Merger Consideration and to pay all estimated related fees and expenses, including payment of all amounts required to be paid by or on behalf of Parent as contemplated by Article II of this Agreement and any required refinancings or repayments of existing indebtedness. As of the date of this Agreement, to the best of Parent’s knowledge, no event has occurred which would result in any breach or circumstance exists which, violation of or constitute a default (or an event which with notice or without notice, lapse of time or both, both would or would reasonably be expected to constitute become a default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, default) under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereofCommitments, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent and Merger Sub have has fully paid, or caused to be fully paid, paid any and all commitment fees or other fees which are due and payable on or required to be paid prior to the date hereof of this Agreement pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersCommitments.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be Parent has provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, complete and correct and complete copy copies of (i) the fully executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed debt commitment letter, dated as of the date hereof, from Credit Suisse Securities between Parent, Merger Sub and the Financing Sources party thereto (USAas the same may be amended, restated, supplemented, replaced, substituted, terminated or otherwise modified or waived in accordance with Section 5.7(h) LLCor Section 5.7(i), ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingtogether with any related exhibits, Inc.schedules, Royal Bank annexes, supplements, term sheets and the Debt Fee Letter, collectively, the “Debt Commitment Letter”), pursuant to which such Financing Sources have committed, subject to the terms and conditions set forth therein, to lend the amounts set forth therein for the purposes of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., financing the Transactions and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. related fees and expenses (the “Debt Financing”), together with all fee letters referenced in the Debt Commitment Letter or entered into in connection with the Debt Financing (collectively, the “Debt Fee Letter”) (which may be redacted to omit the fee amounts, “flex” terms, and other economic or commercially sensitive terms (the redacted terms of which do not adversely affect the amount (below the Required Amount), conditionality, availability or termination of the Debt Financing or adversely impact the ability of Parent and Merger Sub to enforce their respective rights under the Debt Commitment Letter) and (ii) the fully executed equity commitment letter, dated as of August 7, between Parent and each of Bansk Fund I-A, L.P., a Delaware limited partnership, Bansk Fund I-B, L.P., a Delaware limited partnership, Bansk Group LP, a Delaware limited partnership, and G▇▇▇ Co-Invest, L.P., a Delaware limited partnership (the “Equity Commitment Letter” and, together with the Equity Financing Debt Commitment Letter and the Debt Fee Letter, the “Financing Letters”), pursuant to which the lenders party investor parties thereto (the “Equity Financing Parties”) have committed, subject to the terms thereofand conditions set forth therein, to lend invest in Parent the cash amounts set forth therein (the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Debt Financing, the “Financing”). Parent has also delivered to The Equity Commitment Letter provides that (A) the Company a true, complete and correct copy of any fee letter is an express third-party beneficiary thereof as set forth therein in connection with the Debt Commitment Letter (it being understood that any such fee letter provided Company’s exercise of its rights under Section 8.5(b) and is entitled to specifically enforce performance of the investor parties thereto to fund the Equity Financing in accordance with and subject to the Company may terms of the Equity Commitment Letter, and (B) subject in all respects to Section 8.5(b), none of Parent or the Equity Financing Parties thereto will oppose the granting of an injunction, specific performance or other equitable relief on the basis that there is an adequate remedy at law in connection with the exercise of such third-party beneficiary rights. As of the date hereof, (i) the Financing Letters and the terms of the Financing have not been amended, assigned, supplemented, replaced, restated, substituted or modified, (ii) no such amendment, assignment, supplementation, replacement, restatement, substitution or modification is contemplated (other than to the extent such action would be redacted in accordance with Section 5.7(h)) and (iii) the respective commitments contained therein have not been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated (other than to omit the numerical amounts provided therein) extent such action would be in accordance with Section 5.7(h)). As of the date hereof, there are no side letters or other Contracts or arrangements related to the funding or investing, as applicable, of the Financing other than as expressly set forth in the Financing Letters (except for customary engagement letters or non-disclosure agreements which do not impact the amount or conditionality of the Financing). Parent or its Affiliates have fully paid any such fee letter, a “Fee Letter”)
(c) and all commitment fees or other fees in connection with the Financing Letters that are payable on or prior to the date hereof. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of and are the date hereof. The Financing Letters are (i) legal, valid valid, binding and binding enforceable obligations of Parent and Parent, Merger Sub, as applicable, Sub and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallyterms. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related to the funding of the full amount of Required Amount, other than as expressly set forth in the FinancingFinancing Letters. 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 or Parent, Merger SubSub or, as applicable, or to the Knowledge knowledge of Parent, any other parties thereto, party thereto under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectLetters. As of the date hereof, and subject to assuming the satisfaction of the conditions set forth in Article VI and to Parent’s obligations to consummate the performance by the Company of its obligations under this AgreementMerger, neither Parent nor Merger Sub has any no reason to believe that (i) any of the conditions to the Financing contemplated in by the Financing Letters will not be satisfied on a timely basis (and in any event, not later than the Closing) or that (ii) the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersClosing.
(db) Concurrently with the execution and delivery of this Agreement, Parent has delivered to the Company a duly executed Limited Guarantee, pursuant to which the Guarantor is guaranteeing certain obligations of Parent in connection with this Agreement. As of the date hereof, none the Limited Guarantee is in full force and effect and constitutes the legal, valid and binding obligation of Parentthe Guarantor who executed such Limited Guarantee and, Merger Sub or any of their respective Affiliates is a party assuming compliance by the Company with its representations, warranties and obligations pursuant to any Contractsthis Agreement, or any commitment to enter into any Contractsno event has occurred which, with any Person (including any Company Stockholderor without notice, director, officer lapse of time or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Subboth, would be constitute a breach of, or would cause to be untrue, any default on the part of the representations in this Section 3.10(e)such Guarantor under such Limited Guarantee.
Appears in 1 contract
Sources: Merger Agreement (PetIQ, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub Parties have delivered to the Company a true, correct true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)letters, dated as of the date hereofof this Agreement, among Parentfrom China Merchants Bank Co., Merger Sub and the other parties thereto Ltd. (collectively, the “Equity "Debt Financing Sources”Commitments"), pursuant to which regarding the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein for the purposes of financing the Merger and the other transactions contemplated hereby, and related fees and expenses (the “Equity "Debt Financing”) "). The Parent Parties have delivered to the Company true and (ii) complete copies of the executed equity commitment letterletters, dated as of the date hereofof this Agreement, from Credit Suisse Securities the Equity Investors (USA) LLCcollectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., the "Equity Financing Commitments" and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Debt Financing LetterCommitments, the “"Financing Letters”Commitments"), pursuant to which regarding the lenders party thereto have committed, subject to the terms thereof, to lend the amounts proposed equity investments set forth therein (the “Debt "Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, " and together with the Equity Debt Financing, the “"Financing”"). The Financing Commitments are in full force and effect as of the date hereof and are the legal, valid and binding obligations of the Parent Parties party thereto and, to the Knowledge of Parent, of the other parties thereto (including the applicable borrowers), in accordance with the terms and conditions thereof, subject to the Bankruptcy and Equity Exception. Parent has also delivered to the Company a true, true and complete and correct copy of any fee letter in connection with the Debt Commitment Letter Financing Commitments (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical fee amounts provided therein) (any such fee letter, a “"Fee Letter”").
(b) Assuming (A) the Financing is funded in accordance with the Equity Financing Commitments and the Debt Financing Commitments, as applicable, (B) the Founder Securities are cancelled in accordance with Section 3.1(b) and (C) the satisfaction of the conditions to the obligation of the Parent Parties to consummate the Merger as set forth in Section 7.1 and Section 7.2 or the waiver of such conditions, the Parent Parties will have at and after the Closing funds sufficient to pay the aggregate amount of consideration payable to the holders of Company Shares (including Company Shares represented by ADSs) in accordance with Section 3.1(c) (the "Merger Consideration"), the aggregate amount of consideration payable in respect of Company Options and Company Restricted Shares in accordance with Section 3.1(f), any other amounts required to be paid in connection with the consummation of the Merger and the other transactions contemplated hereby (including any applicable consideration to the holders of Company Convertible Notes pursuant to Section 3.6 or repurchase of any Company Convertible Notes in accordance with the terms of the applicable Indenture Agreement), and all related fees and expenses payable by the Parent Parties in connection with such transactions. The obligations of the financing sources to fund the commitments under the Financing Commitments are not subject to any contractual conditions other than as set forth in the Financing Commitments, and the subscription agreements attached to the Equity Financing Commitments do not contain any condition to which any Equity Investor's obligation to fund its Equity Financing under its Equity Financing Commitment is subject other than those set forth in the first sentence of Section 2 of the Equity Financing Commitments.
(c) As of the date hereofof the Agreement, each of the Financing Letters have Commitments, in the form so delivered, is in full force and effect and is a legal, valid and binding obligation of the Parent Parties party thereto and the other parties thereto, has not been amended or modified and none modified, to the Knowledge of Parent, no such amendment or modification is contemplated, the respective obligations and commitments contained in the Financing Letters Commitments have not been withdrawn withdrawn, terminated or rescinded in any respectrespect and to the Knowledge of Parent, no such withdrawal, termination or restriction is contemplated. The Financing LettersParent Parties have fully paid any and all fees, in the form so delivered if any, that are payable on or prior to the Company on date hereof under the Financing Commitments and will pay when due all other fees arising under the Financing Commitments as and when they become due and payable thereunder. As of the date hereof, are in full force and effect as no event has occurred which, with or without notice, lapse of time or both, would or would be reasonably expected to constitute a default or breach on the part of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, andParties party thereto or, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the any other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcyunder the Financing Commitments, insolvency, reorganization, moratorium and other similar laws affecting or relating would otherwise excuse or permit the financing sources to creditors’ rights generallyrefuse to fund their respective obligations under the Financing Commitments. The Financing Letters and the Fee Letter Commitments contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein therein, and there are no other conditions precedent side letters or other contingencies oral or written Contracts related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which any Parent Party or any of its Affiliates Subsidiaries is a party related to the funding or investing, as applicable, of the full amount of the Financing other than (i) as expressly set forth in the Financing Letters.
(d) As of the date hereofCommitments, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or and (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to customary engagement letters and the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Fee Letters.
Appears in 1 contract
Financing. Attached hereto as Exhibit D is a true and complete copy of the mandate letter (a) The aggregate amount of funds contemplated to be provided pursuant to the "Debt Financing Letters (as defined belowCommitment Letter"), together with dated as of May 20, 2011, from Bank of America, N.A., The Hong Kong and Shanghai Banking Corporation Limited and Citigroup Global Markets Asia Limited (collectively, the cash on hand "Lenders"), regarding the amounts set forth therein for the purposes of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with financing the Merger and the other transactions contemplated by this Agreement and related fees and expenses (the "Debt Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company "). Attached hereto as Exhibit E is a true, correct true and complete copy of (i) the executed equity commitment letter (the “"Equity Financing Commitment Letter”" and together with the Debt Financing Commitment Letter, the "Financing Commitment Letters"), dated as of the date hereofof this Agreement, among Parentfrom the Guarantor and ▇▇▇▇ Capital Fund X, Merger Sub and L.P. (together with the other parties thereto (collectivelyGuarantor, the “"Sponsors"), regarding the proposed equity investments set forth therein (the "Equity Financing Sources”Financing" and together with the Debt Financing, the "Financing"). Exhibit A hereto sets forth a true and complete copy of the Rollover Agreement, pursuant to which the Equity Financing Sources have committedRollover Shareholders agreed to contribute to Parent and/or Merger Sub, as applicable, subject to the terms thereofand conditions therein, to invest the cash amounts number of Company Shares set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Lettercollectively, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”"Rollover Shares"). Parent has also delivered to the Company a true, true and complete and correct copy of any fee letter in connection with the Debt Commitment Letter Financing (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical fee amounts provided therein) (any such fee letter, a “"Fee Letter”")
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are Assuming (i) legal, valid the Financing is funded in accordance with the Equity Financing Commitment Letter and binding obligations of Parent and Merger Subthe Debt Financing Commitment Letter, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) enforceable the contributions contemplated by the Rollover Agreement are made in accordance with their respective the terms against of the Rollover Agreement, and (iii) Parent and Merger SubSub are obligated to close pursuant to Section 2.2, as applicable, and, Parent and Merger Sub will have at and after the Closing funds sufficient for Merger Sub to pay the Knowledge aggregate Merger Consideration and the amounts payable at the Effective Time in respect of Parent, each Vested Company Options pursuant to Section 3.5 and for Parent and Merger Sub to pay all fees and expenses payable by them in connection with the consummation of the Merger and the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallytransactions contemplated hereby. The Financing Letters and the Fee Letter contain all of the conditions precedent to the obligations of the parties thereunder financing sources to make fund the commitments under the Financing available Commitment Letters are not subject to Parent on any contractual conditions other than as set forth in the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the FinancingFinancing Commitment Letters. As of the date of this Agreement, 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 assuming Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any are obligated to close pursuant to Section 2.2, Parent and Merger Sub do not have reason to believe that any of the conditions to the Financing will not be satisfied, that the Financing will not be available to Parent and Merger Sub at the Closing, any of the conditions to the contributions contemplated in the Financing Letters Rollover Agreement will not be satisfied or that the Financing contribution contemplated by the Rollover Agreement will not be made available to Parent on or before the Closing. The Equity Financing Letter provides that, subject to the terms and conditions contained therein, the Company is a third party beneficiary thereto with respect to the provisions therein. As of the date of this Agreement, (A) each of the Financing Commitment Letters and the Rollover Agreement is in full force and effect and is the legal, valid and binding obligations of Parent and Merger Sub at or prior and, to the Closing DateKnowledge of Parent, of the other parties thereto, in accordance with the terms and conditions thereof, subject to the Bankruptcy and Equity Exception, (B) none of the Financing Commitment Letters and the Rollover Agreement has been amended or modified, no such amendment or modification is contemplated and the respective commitments contained in the Financing Commitment Letters and the Rollover Agreement have not been withdrawn, terminated, or rescinded in any respect and no such withdrawal, termination or rescission is contemplated, and (C) no event has occurred that (with or without notice, lapse of time, or both) would constitute a breach or default under the Financing Commitment Letters or the Rollover Agreement by Parent or Merger Sub and, to the Knowledge of Parent, by the other parties thereto. Parent and or Merger Sub have has fully paid, or caused to be fully paid, paid any and all commitment fees or other fees which in connection with the Financing Commitment Letters that are due and payable on or prior to the date hereof pursuant to the terms hereof. As of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c)date hereof, there are no side letters or other oral or written Contracts 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 (x) as expressly set forth in the Financing Commitment Letters.
, (dy) As the Fee Letter, and (z) any other agreements that do not impact the conditionality or amount of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing LettersFinancing.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (China Fire & Security Group, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be ▇▇▇▇▇ Parent has provided pursuant to the Financing Letters (as defined below), together Trican Parent with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct true and complete copy of of: (ia) the executed a debt commitment letter (the “Equity Financing Letter”including all annexes, exhibits, schedules and other attachments thereto), dated as of the date hereof, by and among ParentBuyer, Merger Sub KGH Intermediate Holdco II, LLC and the other parties thereto ▇▇▇▇ Bank (collectively, the “Equity Financing SourcesTerm Debt Commitment”), pursuant to which the Equity Financing Sources have committed(b) a debt commitment letter (including all annexes, subject to the terms thereofexhibits, to invest the cash amounts set forth therein (the “Equity Financing”) schedules and (ii) the executed commitment letterother attachments thereto), dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇by and among ▇▇▇▇▇ ▇▇Parent and PNC Bank, National Association (the “Incremental Debt Commitment” and collectively, the “Debt Financing Commitment”), pursuant to which, upon the terms and subject to the conditions set forth therein the lenders have agreed to lend an incremental $100,000,000 in the aggregate (at least $75,000,000 to be in the form of an incremental term loan) to ▇▇▇▇▇ Senior FundingParent and its Subsidiaries (the “Debt Financing”), Inc.(c) the Equity Financing Commitment (together with the Debt Financing Commitment, Royal Bank of Canadathe “Financing Commitments”), RBC Capital Marketspursuant to which, SunTrust Bankupon the terms and subject to the conditions set forth therein, SunTrust ▇▇▇Sponsor has committed to invest, directly or indirectly, in ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. Parent $200,000,000 (the “Debt Commitment LetterEquity Financing” and, and together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to , and in each case, for the Company a true, complete and correct copy purposes of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Lettersfinancing, in the form so delivered aggregate, the transactions contemplated by this Agreement and for working capital purposes, and (d) the Limited Guarantee, pursuant to which, upon the terms and subject to the Company on conditions set forth therein, Sponsor has committed to guarantee the date hereof, are in full force and effect as payment of the date hereof. The Financing Letters are (i) legal, valid Tier One Termination Fee and binding obligations of Parent and Merger Subthe Tier Two Termination Fee, as applicable, and, in the event that ▇▇▇▇▇ Parent is obligated to pay the Tier One Termination Fee or the Tier Two Termination Fee pursuant to the Knowledge terms of Parent, each of the other parties thereto this Agreement and (ii) enforceable fails to do so 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectherewith. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts written agreements or arrangements, relating (directly or indirectly) to the Financing or the Financing Commitments to which ▇▇▇▇▇ Parent or any of its Affiliates is a party party, other than the Debt Financing Fee Letter (a customarily redacted copy of which has been provided to Trican Parent). As of the date hereof, each of the Financing Commitments is, to ▇▇▇▇▇ Parent’s knowledge, in full force and effect, and neither of the Financing Commitments has been amended, modified, withdrawn or rescinded in any respect. Each of the Financing Commitments (in the case of the Debt Financing Commitment, assuming due authorization, execution and delivery of the parties thereto (other than ▇▇▇▇▇ Parent)) is the legal, valid and binding obligation of ▇▇▇▇▇ Parent and, to ▇▇▇▇▇ Parent’s knowledge, of the other parties thereto, in accordance with the terms and conditions thereof, except to the extent that enforceability may be limited by bankruptcy, insolvency, reorganization or other similar Laws affecting the enforcement of creditors’ rights generally. There are no conditions precedent or other contractual contingencies (directly or indirectly) related to the funding or investing, as applicable, of the full amount of the Financing at Closing other than as the conditions to Closing set forth herein and the conditions expressly set forth in the Financing Letters.
(d) Commitments. As of the date hereof, none to ▇▇▇▇▇ Parent’s knowledge there is no event that has occurred which, with or without notice, lapse of Parenttime or both, Merger Sub would constitute a default or breach on the part of ▇▇▇▇▇ Parent or Sponsor under any term or condition of the Financing Commitments, and, as of the date hereof, Buyer has no knowledge that any of the conditions to the Financing Commitments will not be satisfied or that the Financing will not be available to ▇▇▇▇▇ Parent at Closing, subject to the performance by Trican Parent and the Seller Companies of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by obligations under this Agreement other than as set forth in the Financing Letters.
(e) Agreement. As of the date hereof, neither ▇▇▇▇▇ Parent nor Merger Sub has fully paid or caused to be paid any and all commitment fees and other fees that are required by the Financing Commitments or the executed fee letters referred to in the Debt Financing Commitment (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity“Debt Financing Fee Letters”), lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating are due and payable pursuant to the Company terms thereof on or its Subsidiaries (including in connection with prior to the making date of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither , and ▇▇▇▇▇ Parent nor Merger Sub has caused will pay or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, paid any of other commitment fees and other fees that are required to be paid by ▇▇▇▇▇ Parent under the representations in this Section 3.10(e)Debt Financing Fee Letters as they become due.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated Buyer has delivered to be provided pursuant Seller prior to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct date hereof true and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the a fully executed commitment letter, dated as of the date hereof, from Credit Suisse Securities by and among Buyer and the Debt Financing Sources party thereto, including all annexes, exhibits, schedules and other attachments thereto and all executed fee letters associated therewith (USA) LLCother than the fees set forth therein, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingpricing terms, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.pricing caps, and The Bank other terms that are customarily redacted in connection with transactions of Tokyo-Mitsubishi-UFJthis type, Ltd. which have been redacted) (as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 5.17, collectively, the “Debt Commitment Letter”) pursuant to which the Debt Financing Sources have committed, on the terms and subject to the conditions set forth therein, to provide Buyer with debt financing in the amounts set forth therein in connection with the Transactions (the “Debt Financing”) and (ii) a fully executed commitment letter, including all annexes, exhibits, schedules and other attachments thereto (the “Equity Commitment Letter” and, together with the Equity Financing Debt Commitment Letter, the “Financing Commitment Letters”), dated as of the date hereof, by and between Sponsor and Buyer, pursuant to which Sponsor has committed to provide equity financing in the lenders party thereto have committed, amount and on the terms and subject to the terms thereof, to lend the amounts conditions set forth therein in connection with the Transactions (the “Debt Equity Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Debt Financing, the “Financing”). Parent has also delivered The Equity Commitment Letter provides, and will continue to provide, that Seller is a third-party beneficiary thereto with respect to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided provisions specified therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereof, (i) the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are Debt Commitment Letter is in full force and effect as of the date hereof. The Financing Letters are (i) legal, and constitutes a valid and binding obligations obligation of Parent and Merger Sub, as applicable, Buyer and, to the Knowledge knowledge of ParentBuyer, each the other parties thereto, (ii) the Equity Commitment Letter is in full force and effect and constitutes a valid and binding obligation of Buyer and the other parties thereto and (iiiii) assuming due and valid execution by each other party thereto, each of the Financing Commitment Letters is enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, B▇▇▇▇ and, to the Knowledge knowledge of Parentthe Buyer, each of the other parties theretothereto in accordance with its terms, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the conditions precedent subject to the obligations of the parties thereunder to make the Financing available to Parent on the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the FinancingEnforceability Exception. As of the date hereof, no Financing Commitment Letter has been amended or modified in any respect, and no provisions or rights thereunder have been waived by Buyer and, to the knowledge of this AgreementBuyer, the respective commitments contained therein have not been withdrawn or rescinded, nor is any such amendment, modification, withdrawal or rescission currently contemplated by Buyer, or, to the knowledge of Buyer, any other party thereto, which would result in the amount of the Financing being less than the Required Amount. Assuming the satisfaction of the conditions set forth in Article 8, as of the date hereof, 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 under (i) the Debt Commitment Letter on the part of Parent or Merger SubBuyer or, as applicable, or to the Knowledge knowledge of ParentBuyer, any other parties party thereto, under or (ii) the Equity Commitment Letter on the part of Buyer or any other party thereto. There are no conditions precedent or other contractual contingencies related to the funding of the Financing Letters or that makes any of on the assumptions or statements Closing Date, other than the conditions precedent expressly set forth in the Financing Letters inaccurate in any material respect. As Commitment Letters, and B▇▇▇▇ has no reason to believe that, as of the date hereof, of this Agreement and subject to the satisfaction or waiver of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement8, neither Parent nor Merger Sub has any reason to believe that any of the conditions (i) it or, to the Financing contemplated in the Financing Letters knowledge of Buyer, any other party thereto will not be able to satisfy on a timely basis any term or condition of the Financing Commitment Letters required to be satisfied by such Person on or that prior to the Closing Date in accordance with such Financing Commitment Letter, including any condition to the closing of the Financing, or (ii) the Financing will not be made available to Parent and Merger Sub Buyer at or prior to Closing in at least the Closing DateRequired Amount. Parent As of the date hereof, other than as contemplated by the Financing Commitment Letters and Merger Sub have fully paid, or caused delivered to be fully paid, any and all commitment or other fees which are due and payable Seller on or prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c)this Agreement, there are no side letters or other Contracts to which Parent contracts or any of its Affiliates is a party related arrangements relating to the funding or investing, as applicable, of the full amount Debt Financing. The aggregate proceeds of the Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto) will be in an amount sufficient to (1) consummate the Closing upon the terms contemplated by this Agreement, (2) pay all other than as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub amounts payable by Buyer in connection with the Merger and/or any consummation of the Transactions required to be paid by Buyer on or prior to the Closing Date and (3) satisfy all other payment obligations under this Agreement that may arise in connection with, or may be required in order to consummate, the transactions contemplated by this Agreement on the Closing Date (collectively, the “Required Amount”). Buyer has fully paid, caused to be paid, or concurrently with the Closing, shall pay or cause to be paid, any and all commitment fees and any and all other than fees and expenses, in each case as set forth in are required to be paid pursuant to the terms of the Financing LettersCommitment Letters on or prior to the Closing Date.
(ec) As B▇▇▇▇ acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, the consummation of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on Financing shall not be a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services condition to any third party in connection with a transaction relating obligations of Buyer hereunder, including the obligation to consummate the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)Transactions.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dollar Tree, Inc.)
Financing. Parent has provided the Company true and complete copies of (a) The aggregate amount of funds contemplated to be provided pursuant fully executed commitment letters dated on or aboutprior to the Financing Letters date hereof (as defined below), together with the cash on hand of Parent all exhibits, annexes, schedules and its Subsidiariesterm sheets attached thereto, is sufficienteach, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the an “Equity Financing Funding Letter”)” and, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing SourcesFunding Letters”), pursuant to which the Equity Financing Sources have committed) from each Guarantor providing for an equity investment in Parent, subject to the terms thereofand conditions therein, to invest in cash in the cash aggregate amounts set forth therein (the “Equity Financing”) and (iib) the fully executed commitment letter, letters and Redacted Fee Letters dated as of on or aboutprior to the date hereofhereof (together with all exhibits, from Credit Suisse Securities (USA) LLCannexes, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Fundingschedules and term sheets attached thereto, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the each a “Debt Commitment Letter” and, collectively, the “Debt Commitment Letters” and, together with the Equity Financing LetterFunding Letters, the “Financing Letters”), pursuant to which from the lenders party thereto have committedfinancial institutions identified therein (the “Commitment Parties”), providing, subject to the terms thereofand conditions therein, to lend for debt financing, in each case, in the amounts set forth therein (being collectively referred to as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy Each of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Lettersis valid, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of enforceable by Parent against the other parties thereto and (ii) enforceable in accordance with their respective terms against Parent and Merger Subits terms, as applicable, and, subject to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium Bankruptcy and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the FinancingEquity Exception. As of the date hereof, each of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters is in full force and effect and the respective obligations and commitments therein have not been withdrawn, rescinded or that makes any of the assumptions terminated or statements set forth in the Financing Letters inaccurate otherwise amended or modified in any material respect. As of the date hereof, and subject no event has occurred which (with or without notice, lapse of time, or both) would reasonably be expected to constitute a breach in any material respect or default on the part of Parent or, to the Knowledge of Parent, any of the other parties thereto under the Financing Letters or otherwise result in any portion of the Financing contemplated thereby, as applicable, to be unavailable or delayed. Subject to the satisfaction of the conditions set forth contained in Article VI Section 7.01 and Section 7.03 hereof, as of the performance by the Company of its obligations under this Agreementdate hereof, neither Parent nor Merger Sub has any no reason to believe that any of the conditions to the Financing contemplated in any of the Financing Letters will not be satisfied or that any of portion of the Financing will not be made available thereunder on a timely basis in order to Parent and Merger Sub at or prior to consummate the Closing DateTransactions. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub the Guarantors or the Commitment Parties has notified Parent of its intention to terminate any of their respective Affiliates its obligations under the applicable Financing Letter or not to provide the applicable Financing. Assuming (A) the satisfaction of the conditions in Sections 7.01 and 7.03 hereof and (B) that the Financing is a party funded in accordance with the terms of the Financing Letters, the net proceeds contemplated by the Financing Letters (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect to any Contracts, or any commitment to enter into any Contracts, with any Person the maximum amount of flex (including original issue discount flex) provided under the Debt Commitment Letter), will be sufficient to pay the Merger Consideration, the refinancing of any Company Stockholder, director, officer credit facility or employee other Indebtedness of the Company or its Subsidiaries) concerning any investments Company Subsidiary that will not continue after the Effective Time, the payment of any fees and expenses of or payable by Parent, and any other amounts required to be made in, or contributions to be made to, paid by Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As consummation of the date hereof, neither Transactions. Parent nor Merger Sub has (i) retained paid in full any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up and all commitment or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider fees occur of debt or equity financing that explicitly prohibits such provider from providing or seeking the events referred to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries clause (including in connection with the making of any Alternative Transaction Proposal)ii)(B) above, in the case of clauses (i) and a termination under clause (ii), ; it being understood that in connection with no event shall the Merger Company be required to pay or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of paid the representations in this Section 3.10(e)Company Termination Fee on more than one occasion.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies of (i) the executed commitment letter (the “Equity Financing Letter”)from Bank of America, N.A., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, Royal Bank of Canada and RBC Capital Markets, including any related fee letter in redacted form, dated as of the date hereof, among Parent, Merger Sub and the other parties thereto hereof (collectively, the “Equity Financing SourcesDebt Commitment Letter”), pursuant to which the Equity Financing Sources have committedwhich, and subject to the terms and conditions thereof, the lender parties thereto have committed to lend the amounts set forth therein to Merger Sub for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”), and (ii) the executed equity commitment letter, dated as of the date hereof (the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Financing Commitments”) from Guarantor pursuant to which, and subject to the terms and conditions thereof, the investor parties thereto have committed to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered The Equity Commitment Letter provides, and will continue to provide, that the Company is a third party beneficiary thereto with respect to the Company provisions specified therein.
(b) All of the Financing Commitments are, as of the date hereof, in full force and effect and have not been withdrawn or terminated or otherwise amended, supplemented or modified in any respect. Each of the Financing Commitments, in the form so delivered, is a truelegal, complete valid and correct copy binding obligation of any fee letter Parent and Merger Sub and (in connection with the case of the Debt Commitment Letter (it being understood that any such only, to the knowledge of Parent) the other parties thereto. Except for a fee letter and engagement letter (complete copies of which have been provided to the Company may be redacted with only the fee amounts and certain other terms (none of which would adversely affect the amount, conditionality, enforceability, termination or availability of the Debt Financing) redacted), as of the date hereof there are no side letters or other agreements, contracts or arrangements related to omit the numerical amounts provided therein) (any such fee letterfunding or investing, a “Fee Letter”)
(c) as applicable, of the Financing other than as expressly set forth in the Financing Commitments. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub under any term of the Financing Commitments, and (ii) there has been no failure of any condition on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters Commitments or other action on the part of Parent or Merger Sub that makes would or would reasonably be expected to result in any portion of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectcontemplated thereby to be unavailable. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that Parent would be unable to satisfy on a timely basis any term or condition of the Financing Commitments required to be satisfied by it. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement. Assuming the satisfaction of the conditions to Parent’s obligation to consummate the Offer and/or the Merger (as applicable), the aggregate proceeds of the Financing, if funded in accordance with the Financing Commitments, and, subject to Section 4.14, together with the cash and cash equivalents available to the Company, will be sufficient to fund all of the amounts required to be provided by Parent for the consummation of the transactions contemplated hereby (including the Offer and the Merger), and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s obligations under this Agreement in connection with the consummation of the transactions contemplated by this Agreement, including the payment of the Offer Price in respect of each share of Company Common Stock validly tendered and accepted for payment in the Financing Letters will not be satisfied or that Offer, the Financing will not be made available to Parent and aggregate Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paidConsideration, or caused all amounts to be fully paid, any paid pursuant to Section 2.3 and all commitment associated costs and expenses of the Offer and the Merger (including any repayment or refinancing of indebtedness of the Company required in connection therewith). There are no conditions precedent or other fees which are due and payable on or prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts to which Parent or any of its Affiliates is a party contingencies related to the funding or investing, as applicable, of the full amount of the Financing (including any flex provisions), other than as expressly set forth in or contemplated by the Financing LettersCommitments.
(dc) As of the date hereof, none of Parent, Neither Parent nor Merger Sub or any of their respective Affiliates is a party to any Contracts, agreement or understanding which directly or indirectly limits or restricts the ability of any commitment person to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee provide debt financing for other potential purchasers of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing LettersCompany.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (MModal Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (ia) the a fully executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, hereof from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., ▇ Credit Partners L.P. and The Bank of Tokyo-Mitsubishi-UFJAmerica, Ltd. N.A. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing LettersCommitment”), pursuant to which the lenders party thereto ) whereby such financial institutions have committed, upon the terms and subject to the terms thereofconditions set forth therein, to lend provide senior debt financing in an amount of up to $100 million, and bridge financing in an amount up to $205 million, in connection with the amounts set forth therein transactions contemplated by this Agreement (the “Debt Financing” ”); (which term shall include, if applicable, high-yield bonds issued in lieu of certain b) a fully executed commitment letter dated as of the debt facilities as contemplated under date hereof from ▇.▇. Childs Associates, L.P. (“JWC”) whereby JWC has committed, upon the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered terms and subject to the Company a trueconditions set forth therein, complete and correct copy to provide equity financing in the aggregate amount of any fee letter up to $100 million in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
transactions contemplated by this Agreement; (c) a fully executed commitment letter dated as of the date hereof from OSIM International, Ltd. (“OSIM”) whereby OSIM has committed, upon the terms and subject to the conditions set forth therein, to provide equity financing in the aggregate amount of up to $90 million in connection with the transactions contemplated by this Agreement and (d) a fully executed commitment letter dated as of the date hereof from Temasek Capital (Private) Limited (“Temasek”) whereby Temasek has committed, upon the terms and subject to the conditions set forth therein, to provide equity financing in the aggregate amount of up to $50 million in connection with the transactions contemplated by this Agreement (the commitment letters referred to in clauses (a) – (d) being referred to as the “Commitment Letters”). As of the date hereof, the Financing Commitment Letters have not been amended or modified are valid and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as and have not been amended, modified, withdrawn, terminated or replaced. As of the date hereof, there is no breach or default existing and no event has occurred which, with notice or lapse of time or both, would constitute a default thereunder. The Financing aggregate proceeds of the financings under the Commitment Letters are (i) legalthe “Aggregate Financing”), valid together with an assumed cash balance of the Acquired Companies as of the Closing of at least $24 million and binding obligations an assumed aggregate reinvestment by certain members of the Company’s management of the after-Tax proceeds received by them in respect of their Identified Options in the equity of Parent and Merger Subits Affiliates of at least $7.6 million, as applicableis sufficient to consummate the transactions contemplated by this Agreement, andincluding (x) to pay the aggregate cash consideration to which the Stockholders, to the Knowledge holders of ParentIdentified Options and the holders of Identified Awards become entitled under Section 3.1(c), each of the other parties thereto Section 3.2(a) and Section 3.2(b), respectively and (iiy) enforceable to pay all fees, costs and expenses incurred in accordance connection with their respective terms against Parent this Agreement and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generallytransactions contemplated hereby. The Financing Commitment Letters and the Fee Letter contain accurately set forth all of the material terms of the Aggregate Financing, including a true, correct and complete description of all of the material conditions precedent to the obligations Aggregate Financing. As of the parties thereunder date hereof, none of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Credit Partners L.P., Bank of America, N.A., JWC, OSIM or Temasek has notified Parent or Acquisition of its intention to make terminate such respective Person’s commitment under the Financing available Commitment Letters or not to Parent on provide in full the terms therein and there are no other conditions precedent or other contingencies related to the funding of the full amount of the Financingfinancing contemplated thereby. As of the date of this Agreement, there are no event has occurred facts or circumstance exists which, with circumstances actually known to Parent or without notice, lapse Acquisition (exclusive of time or both, would or general market conditions) that in their good faith estimation would reasonably be expected to constitute a default or breach on cause the part of Parent or Merger Sub, as applicable, or Aggregate Financing not to the Knowledge of Parent, any be consummated. All commitment and other parties thereto, fees required to be paid under the Financing Commitment Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth have been paid in the Financing Lettersfull.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (Brookstone Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, complete and correct and complete copy copies of (i) the one or more fully executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub letters and the other parties thereto any related Redacted Fee Letters (collectively, the “Equity Financing SourcesDebt Commitment Letter”)) from the financial institutions named therein, pursuant to which the Equity Financing Sources such financial institutions have committed, upon the terms and subject only to the terms thereofconditions set forth therein, to invest provide the cash amounts set forth debt financing described therein (in connection with the “Equity Financing”) transactions contemplated by this Agreement and (ii) the fully executed commitment letters (each such letter, dated as of an “Equity Commitment Letter”, and collectively, the date hereof, “Equity Commitment Letters”) from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇funds Affiliated with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Partners, L.P. (“LGP”) and ▇▇▇ Investment Pte. Ltd. (“▇▇▇”) (each of LGP and ▇▇▇, Inc.an “Investor”, and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Lettercollectively, the “Financing LettersInvestors”), pursuant to which the lenders party thereto Investors have committed, upon the terms and subject only to the terms thereofconditions set forth therein, to lend provide the amounts set forth equity financing described therein in connection with the transactions contemplated by this Agreement. The Debt Commitment Letter and, as the context requires, any other debt commitment letter executed pursuant to Section 5.06(c) are hereinafter referred to together as the “Debt Commitment Letters”; and the Debt Commitment Letters and the Equity Commitment Letters are hereinafter referred to collectively as the “Commitment Letters”. The debt facilities contemplated by the Debt Commitment Letters, together with any private placement of unsecured notes (“Notes”) to finance the transactions contemplated by this Agreement (a “Notes Offering”), are hereinafter referred to as the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of and the debt facilities financing contemplated pursuant to the Equity Commitment Letters is hereinafter referred to as the “Equity Financing”. The financings contemplated under pursuant to the Debt Commitment Letter) and, together with Letters and the Equity FinancingCommitment Letters, respectively, are hereinafter referred to collectively as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”).
(cb) As of the date hereof, the Financing The Commitment Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, and to the Knowledge of Parent, each of the other parties thereto (and (iithe Company has been designated as a third party beneficiary of the Equity Commitment Letters as provided therein) and 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, except, in each case except case, as such enforceability enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other reorganization or similar laws Laws affecting or relating to creditors’ rights generallygenerally and by general principles of equity. The Financing Letters All commitment fees and the Fee Letter contain other fees required to be paid thereunder 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 terms and conditions precedent required to be satisfied by them pursuant to the obligations terms of the parties thereunder to make the Financing available to Parent Commitment Letters on the terms therein and there are no other conditions precedent or other contingencies related prior to the funding date hereof. The Commitment Letters have not been amended, modified, withdrawn or terminated in any respect on or prior to the date hereof, and no such amendment, modification or termination is contemplated as of the full amount date hereof other than as would not require a consent or waiver of the Financingthis Agreement. As of the date of this Agreement, hereof 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 breach or default or breach on the part of by Parent or Merger Sub, as applicable, Sub or any of its Affiliates thereunder or otherwise result in any portion of the Financing contemplated thereby to be unavailable. The consummation of the Knowledge Financing and the obligation of Parent, any other the parties thereto, under the Financing Commitment Letters or that makes any to make the full amount of the assumptions or statements Financing available to Parent at the Closing are subject to no conditions precedent other than those expressly set forth in the Financing copies of the Commitment Letters inaccurate delivered to the Company. Except as set forth in any material respectSection 3.09(b) of the Parent Disclosure Letter and except for the Commitment Letters and the Redacted Fee Letter, as of the date hereof, there are no side letters or other agreements, contracts or arrangements related to the funding of the Financing. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in will not be satisfied or the Financing Letters.
(d) As will not be consummated and available in full on or before the date of the date hereof, none Closing. The aggregate proceeds of Parent, the Financing will be sufficient to enable Parent and Merger Sub or any of their respective Affiliates is a party to any Contractsconsummate the Merger on the terms contemplated by this Agreement, or any commitment and to enter into any Contractsmake all payments contemplated by this Agreement, with any Person (including any Company Stockholder, director, officer or employee payment of the Company Merger Consideration, repayment or its Subsidiaries) concerning refinancing of any investments to be made inIndebtedness required as a result of the consummation of the Merger, or contributions to be made to, Parent or Merger Sub and all fees and expenses in connection with the Merger and/or and the other transactions contemplated hereby, assuming the satisfaction of the conditions in Section 7.01 and Section 7.03 and the accuracy of the representations and warranties set forth in Section 4.03(a).
(c) The equity investment by each Investor under its Equity Commitment Letter is not subject to any condition other than the conditions set forth in such Equity Commitment Letter. The provisions of this Section 3.09 shall not result in a failure of a condition pursuant to Section 7.02(a) if Parent is capable of financing the transactions contemplated by this Agreement other than as set forth in on the Financing Letters.
(e) As Closing Date, notwithstanding the provisions of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e)3.09.
Appears in 1 contract
Financing. Parent has delivered to the Company true, correct and complete copies, as of the date of this Agreement, of (ai) The an executed commitment letter from the Guarantor (the “Equity Funding Letter”) to invest, subject to the terms and conditions therein, cash in the aggregate amount of funds contemplated to be provided pursuant to set forth therein (the Financing “Equity Financing”), (ii) an executed commitment letter and Redacted Fee Letters from the financial institutions identified therein (as defined below)the “Debt Commitment Letter” and, together with the cash Equity Funding Letter, collectively referred to as the “Financing Letters”), pursuant to which the lenders party thereto (collectively, the “Lenders”) have committed, subject to the terms and conditions set forth therein, debt financing in the amounts set forth therein for the purposes of financing the Transactions and related fees (being collectively referred to as the “Debt Financing”, and together with the Equity Financing, collectively referred to as the “Financing”). None of the Financing Letters has been amended or modified prior to the date of this Agreement and as of the date of this Agreement, no such amendment or modification is contemplated (other than amendments or modifications that are permitted by Section 5.5(a)), and as of the date of this Agreement the respective obligations and commitments contained in the Financing Letters have not been withdrawn or rescinded in any respect. Except for fee letters and engagement letters with respect to the Financing, as of the date hereof, there are no side letters or Contracts to which Parent or Merger Sub is a party related to the funding or investing, as applicable, of the Financing that could adversely 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 any and all commitment fees or other fees in connection with the Financing Letters that are payable on hand or prior to the date hereof, and as of the date hereof the Financing Letters are in full force and effect and are the legal, valid, binding and enforceable obligations of Parent and its SubsidiariesMerger Sub, as the case may be, and, to the Knowledge of Parent or Merger Sub, each of the other parties thereto. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing, other than as expressly set forth in the Financing Letters. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub or, to the Knowledge of Parent or Merger Sub, any other party thereto under any of the Financing Letters. As of the date hereof, Parent has no reason to believe that any of the conditions to the Financing contemplated by the Financing Letters applicable to it will not be satisfied. Assuming the Financing is sufficientfunded in accordance with the Financing Letters, if fundedParent and Merger Sub, in the aggregate and together with the available cash, cash equivalents and marketable securities of the Company, will have at and after the Closing funds sufficient to (i) pay the aggregate Per Share Price Merger Consideration and any other Equity Award Amounts, (ii) finance the repayment or refinancing of Indebtedness debt contemplated by the this Agreement or either Financing Letters; Letter and (iiiii) pay any and all fees and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; Financing and (iiiiv) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Financing. Buyer has delivered to Seller true and complete fully executed copies of (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”)letter, dated as of the date hereof, hereof among Parent, Merger Sub Buyer and the other parties thereto ▇▇▇▇▇▇▇ Sachs Lending Partners LLC (collectively, the “Equity Financing SourcesLender”), and including all exhibits, schedules and annexes thereto in effect as of the date of this Agreement (the “Bank Commitment Letter”), pursuant to which the Equity Financing Sources have committed, and subject to the terms thereof, and conditions thereof the Lender has agreed and committed to invest provide the cash amounts debt financing set forth therein (the “Equity Bank Financing”) and ), (iib) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities between Buyer and Apollo Investment Corporation (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc.“AIC”), and The Bank including all exhibits, schedules and annexes thereto in effect as of Tokyo-Mitsubishi-UFJ, Ltd. the date of this Agreement (the “AIC Letter” and, together with the Bank Commitment Letter, the “Debt Commitment Letters”), pursuant to which and subject to the terms and conditions thereof AIC has agreed to provide the debt financing set forth therein (the “Bond Financing” and, together with the Bank Financing, the “Debt Financing”), and (c) the commitment letter, dated as of the date hereof from Providence Equity Partners VI L.P. and Providence Equity Partners VI-A L.P. (the “Sponsors”), and including all exhibits, schedules and annexes thereto in effect as of the date of this Agreement (the “Sponsor Commitment Letter” and, together with the Equity Financing LetterDebt Commitment Letters, the “Financing Letters”), to which Seller is a third-party beneficiary for the limited purpose of causing the Sponsor Financing to be funded in accordance with, and subject to the conditions in, Section 11.11(b), pursuant to which the lenders party thereto have committed, and subject to the terms thereof, and conditions thereof the Sponsors have agreed and committed to lend provide the amounts financing set forth therein (the “Debt Sponsor Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Debt Financing, the “Financing”). Parent No Financing Letter has also delivered been amended, restated or otherwise modified or waived prior to the Company a true, complete date of this Agreement and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have not been withdrawn withdrawn, modified or rescinded in any respect. The Financing Letters, in the form so delivered prior to the Company on date of this Agreement. As of the date hereofof this Agreement, are each of the Financing Letters is in full force and effect as of and constitutes the date hereof. The Financing Letters are (i) legal, valid and binding obligations obligation of Parent and Merger Sub, as applicable, each of Buyer and, to the Knowledge knowledge of ParentBuyer, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 There are no other conditions precedent or other contingencies related relating to the funding of the full amount of the Financing, other than as expressly set forth in the respective Financing Letters. Without limitation of the foregoing, neither the fee letter entered into in connection with the Bank Commitment Letter (the “Fee Letter”) nor any other agreement ancillary thereto contains any direct or indirect condition precedent to the funding of the Debt Financing. The net proceeds of the Financing, together with other financial resources of Buyer, will, in the aggregate, be sufficient for the satisfaction of all of Buyer’s obligations under this Agreement, including the payment of any and all amounts required to be paid pursuant to Article II, and of all fees and expenses reasonably expected to be incurred by Buyer in connection herewith. As of the date of this Agreement, (i) no event has occurred which would constitute a breach or circumstance exists which, default (or an event which with notice or without notice, lapse of time or both, both would or would reasonably be expected to constitute a default or breach default), in each case, on the part of Parent or Merger SubBuyer under any Financing Letter or, as applicable, or to the Knowledge knowledge of ParentBuyer, any other parties thereto, under the party to a Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respect. As of the date hereof, Letter and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has (ii) Buyer does not have any reason to believe that any of the conditions to the Debt Financing contemplated in or the Sponsor Financing Letters will not be satisfied or that the Financing or any other funds necessary for the satisfaction of all of Buyer’s obligations under this Agreement and the payment of all fees and expenses reasonably expected to be incurred by Buyer in connection herewith will not be made available to Parent and Merger Sub at or prior to Buyer on the Closing Date. Parent and Merger Sub have Buyer has fully paid, or caused to be fully paid, any and paid all commitment fees or other fees which are due and payable on or required to be paid prior to the date hereof of this Agreement pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Letters.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Stock Purchase Agreement (Marsh & McLennan Companies, Inc.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct true and complete copy copies of the fully executed debt commitment letters from Credit Suisse AG, Jefferies Finance LLC and UBS AG, Stamford Branch (i) the executed commitment letter (collectively, the “Equity Financing LetterLenders”), dated as of the date hereofof this Agreement (including all exhibits, among Parentschedules, Merger Sub annexes and the other parties amendments thereto (collectively, the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts set forth therein (the “Equity Financing”) and (ii) the executed commitment letter, dated as of the date hereofof this Agreement, from Credit Suisse Securities (USA) LLCcollectively, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the or “Financing LettersCommitments”), pursuant to which the lenders party thereto have committedwhich, and subject to the terms and conditions thereof, the Lenders have committed to lend or make available the amounts set forth therein to Buyer, for the purpose of funding the Transactions and related fees and expenses and the refinancing of the Existing Credit Facility (the “Debt Financing” (which term shall include”); provided, if applicablehowever, high-yield bonds issued that in lieu of certain the case of the debt facilities as contemplated under the Debt Commitment Fee Letter) and, together with the Equity Financing, the “Financing”). Parent has also true and complete copies have been delivered to the Company a true, complete and correct copy of any fee letter in connection with the fee amounts and market flex terms (if any) redacted in a customary matter (so long as the redaction does not cover terms that would adversely affect the conditionality, availability or termination of the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”Financing)
(c) . As of the date hereofof this Agreement, all of the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect as of the date hereof. The Financing Letters and are (i) legal, valid and binding obligations of Parent and Merger SubParent, as applicable, Buyer and, to the Knowledge knowledge of Parent, each of the other parties thereto and (ii) thereto, enforceable in accordance with their respective terms against Parent and Merger Sub, as applicable, and, subject to the Knowledge of Parent, each of the other parties thereto, in each case except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the FinancingEnforceability Exceptions. As of the date of this Agreement, no Financing Commitment 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. Assuming the accuracy of the Company’s representations and warranties set forth in Article 3, as of the date of this Agreement, neither Parent nor, to the knowledge of Parent, any other counterparty thereto has committed any breach of any of its covenants or other obligations set forth in, or is in default under, any of the Financing Commitments, and to the knowledge of Parent, no event has occurred or circumstance exists whichthat, with or without notice, lapse of time or both, would or would reasonably be expected to (i) constitute or result in a breach or default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge any Person under any of Parent, any other parties thereto, under the Financing Letters Commitments, (ii) constitute or that makes result in a failure to satisfy any of the terms or conditions set forth in any of the Financing Commitments, (iii) make any of the assumptions or any of the statements set forth in the Financing Letters Commitments inaccurate in any material respect. As respect or (iv) otherwise result in any portion of the date hereofDebt Financing not being available. The aggregate proceeds from the Debt Financing constitute all of the financing required for the consummation of the Transactions and, and subject to assuming the satisfaction of the conditions set forth in Article VI Annex I, when taken together with unrestricted cash on hand of Parent and its Subsidiaries and the performance by Company and its Subsidiaries, are sufficient in amount to provide Parent with the Company funds necessary for it and Buyer to consummate the Transactions at the Closing, to pay all of its obligations under Parent’s and Buyer’s fees and expenses in connection with this Agreement, neither Parent nor Merger Sub has any reason to believe that any of Agreement and the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent and Merger Sub have fully paid, or caused to be fully paid, any and all commitment or other fees which are Offer due and payable on or prior to the date hereof pursuant Closing and to satisfy their obligations under this Agreement at the terms of the Financing LettersClosing. Other than the Fee Letter and as set forth in Schedule 3.10(c), there There are no side letters or other Contracts to which Parent or any of its Affiliates is a party related conditions precedent to the funding or investing, as applicable, of the full amount of the Debt Financing other than as expressly the conditions precedent set forth in the Financing Letters.
(d) As of the date hereofDebt Commitment Letters and, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Debt Commitment Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent there are no side letters, other agreements or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction contingencies relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any obligations of the representations in this Section 3.10(e)counterparties to the Debt Commitment Letters to provide the Debt Financing or that would permit the counterparties thereto to reduce the total amount of the Debt Financing under the terms of the Debt Commitment Letters.
Appears in 1 contract
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have Newco has delivered to the Company a true, correct true and complete copy copies of (ia) the executed commitment letter (letters from the “Equity Financing Letter”), dated as of the date hereof, among Parent, Merger Sub and the other parties thereto (collectively, the “Equity Financing Sources”), pursuant Guarantors to which the Equity Financing Sources have committed, subject to the terms thereof, to invest the cash amounts provide equity financing in an aggregate amount set forth therein (the “Equity Funding Letters”), (b) executed commitment letters (the “Commitment Letters”) from L▇▇▇▇▇ Brothers Inc., Deutsche Bank Securities Inc. and Bank of America, N.A. and certain of their Affiliates pursuant to which the financing parties have agreed to provide debt financing in an aggregate amount set forth therein (being collectively referred to as the “Debt Financing,” and together with the financing referred to in clause (a) being collectively referred to as the “Financing”) and (iic) the executed commitment letterGuarantees. Other than as permitted pursuant to Section 7.11(a) or the terms thereof, dated none of the Equity Funding Letters, Commitment Letters or Guarantees has been replaced, amended or modified and, as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Letter, the “Financing Letters”), pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on As of the date hereof, the Equity Funding Letters, the Commitment Letters and the Guarantees are in full force and effect as of the date hereofeffect. The Financing Letters There are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter contain all of the no 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 precedent or other contingencies related to the funding of the full amount of the Financing, other than as set forth in or contemplated by the Equity Funding Letters or the Commitment Letters. Assuming the funding of the Financing in accordance with the terms of the Equity Funding Letters and the Commitment Letters and the accuracy of the Company’s representations and warranties in Article IV, Newco and the Surviving Corporation will have sufficient funds available to it on the date to Closing to pay the aggregate Merger Consideration and any other repayment or refinancing of debt contemplated in the Equity Funding Letters or the Commitment Letters and to pay all related fees and expenses to be paid by Newco or the Surviving Corporation at Closing (the “Financed Transactions”). As of the date of this Agreement, no event has occurred Newco does not have knowledge of any facts or circumstance exists which, with or without notice, lapse of time or both, would or would circumstances that it believes could reasonably be expected expect to constitute a default or breach on the part of Parent or Merger Sub, as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements set forth result in the Financing Letters inaccurate in any material respect. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to the Closing Date. Parent 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 terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing Lettersbeing satisfied.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to At the Financing Letters (as defined below)Closing, together with the Parent will have, on an unconditional basis, cash on hand sufficient to fund the performance of Parent Parent’s and its Subsidiaries, is sufficient, if funded, Merger Sub’s obligations hereunder to (i) pay consummate the aggregate Per Share Price and any other repayment or refinancing of Indebtedness transactions contemplated by the Financing Letters; (ii) pay any this Agreement and to satisfy all fees other costs and expenses required to be paid by Parent, Merger Sub and the Surviving Corporation in connection with the Merger and the Financing; and (iii) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) their affiliates arising in connection therewith. Parent and Merger Sub have has delivered to the Company and the Stockholder Representative a true, complete and correct and complete copy of (i) the respective executed commitment letter (the “Equity Financing Letter”)letters, dated as of the date hereof, among between Parent, Merger Sub on the one hand, and each Limited Guarantor and Opportunity Partners Offshore-B Co-Invest AIV, L.P., a Cayman Islands limited partnership, on the other parties thereto hand, and attached hereto as Exhibit E (collectively, the “Equity Financing SourcesLetters”), pursuant to which the Equity Financing Sources Limited Guarantors have committed, upon the terms and subject to the terms thereofconditions set forth therein, to invest in Parent the cash amounts set forth therein in the Equity Financing Letters (the “Equity Financing”) ), and (ii) the executed commitment letter, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇between Parent and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Lending Partners LLC, Deutsche Bank Securities Inc., Deutsche Bank Trust Company Americas and The Deutsche Bank of Tokyo-Mitsubishi-UFJAG Cayman Islands Branch (collectively, Ltd. the “Lender Parties”) and attached hereto as Exhibit F (the “Debt Commitment Financing Letter” and, and together with the Equity Financing LetterLetters, the “Financing LettersCommitments”), pursuant to which the lenders party thereto Lender Parties have committed, upon the terms and subject to the terms thereofconditions set forth therein, to lend the amounts set forth therein in the Debt Financing Letter (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, the “Financing”). Parent has also delivered .
(b) Neither of the Financing Commitments have been amended or modified prior to the Company date of this Agreement, and, as of the date hereof, the respective commitments contained in the Financing Commitments have not been withdrawn, terminated or rescinded in any respect. As of the date hereof, there are no other agreements, side letters or arrangements to which Parent or Merger Sub is a true, complete and correct copy party relating to either of any fee letter in connection with the Debt Commitment Letter (it being understood Financing Commitments that any such fee letter provided to could affect the Company may be redacted to omit availability of the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) Financing. As of the date hereof, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, Commitments are in full force and effect and constitute the legally valid and binding obligations of Parent, of the other parties to the Equity Financing Letters and, to the knowledge of Parent, the other parties to the Debt Financing Letter. There are no conditions precedent or other contractual contingencies between Parent and any other party to the Financing Commitments or the executed fee letter, dated as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and between Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters Sub and the Lender Parties a redacted copy of which is attached hereto as Exhibit G (the “Debt Fee Letter 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 precedent or other contingencies Letter”), related to the funding of the full amount of the Financing. As of Financing (including any “flex” provisions contained in the date of this AgreementDebt Fee Letter), 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 or Merger Sub, other than as applicable, or to the Knowledge of Parent, any other parties thereto, under the Financing Letters or that makes any of the assumptions or statements expressly set forth in the Financing Letters inaccurate Commitments and the Debt Fee Letter. The proceeds to be disbursed pursuant to the agreements contemplated by the Financing Commitments, in any material respectthe aggregate and together with the available cash, cash equivalents and marketable securities of the Company, will be sufficient for Parent to pay the Closing Payments and all related fees and expenses at the Closing. As of the date hereof, no event has occurred which would result in any breach or violation of or constitute a default (or an event which with notice or lapse of time or both would become a default) by Parent under the Financing Commitments, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters Commitments will not be satisfied or that the Financing will not be made available to Parent and Merger Sub at or prior to on the Closing Date. Parent and Merger Sub have has fully paid, or caused to be fully paid, any and paid all commitment fees or other fees which are due and payable required to be paid on or prior to the date hereof pursuant to the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersCommitments.
(d) As of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing Letters.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (Transunion Corp.)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all of the other payment obligations of Parent, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have has delivered to the Company a true, correct and complete copy copies, as of the date of this Agreement, of (i) the an executed commitment letter (the “TPG Equity Financing Funding Letter”)) from TPG Partners VI, dated as of L.P. and an executed commitment letter (the date hereof“LGP Equity Funding Letter” and, among Parent, Merger Sub and together with the other parties thereto (collectivelyTPG Equity Funding Letter, the “Equity Financing SourcesFunding Letters”)) from Green Equity Investors V, pursuant L.P. and Green Equity Investors Side V, L.P. (collectively with TPG Partners V, L.P. the “Equity Providers” and each an “Equity Provider”) to which the Equity Financing Sources have committedeach invest, in each case subject to the terms thereofand conditions therein, to invest cash in the cash amounts aggregate amount set forth therein (being collectively referred to as the “Equity Financing”) and ), (ii) an executed rollover commitment letter (the executed commitment letter“Rollover Letter”) from MD, dated as of the date hereof, from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ The ▇▇▇▇▇▇▇ Senior FundingFamily Revocable Trust, Inc., Royal Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2009 Grantor Retained Annuity Trust #1, The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 2009 Grantor Retained Annuity Trust #2 (collectively, Inc.the “Rollover Investors”) to contribute to Parent, subject to the terms and The Bank conditions therein, the amount of Tokyo-Mitsubishi-UFJ, Ltd. Company Common Stock set forth therein (the “Rollover Investment”) and (iii) an executed commitment letter and Redacted Fee Letters from the financial institutions identified therein (the “Debt Commitment Letter” and, together with the Equity Financing LetterFunding Letters, the “Financing Letters”), pursuant ) to which the lenders party thereto have committedprovide, subject to the terms thereofand conditions therein, to lend debt financing in the amounts set forth therein (being collectively referred to as the “Debt Financing” (which term shall include”, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as contemplated under the Debt Commitment Letter) and, and together with the Equity Financing, Financing collectively referred to as the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereof, none of the Financing Letters have not Equity Funding Letters, the Rollover Letter or Debt Commitment Letter has been amended or modified modified, no such amendment or modification is contemplated (other than amendments or modifications that are permitted by Section 5.5(a)), and none of the respective obligations and commitments contained in the Financing Letters such letters have not been withdrawn or rescinded in any respect. The Financing Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Equity Funding Letters, in the form so delivered Rollover Letter and the Debt Commitment Letter that are payable on or prior to the date hereof. Assuming (i) the Financing is funded in accordance with the Equity Funding Letters and the Debt Commitment Letter, as applicable, (ii) the contribution contemplated by the Rollover Letter is made in accordance with the terms of the Rollover Letter, (iii) the accuracy of the representations and warranties set forth in Article III and (iv) performance by the Company on of its obligations under Section 5.1, as of the date hereof, the net proceeds contemplated by the Equity Funding Letters and Debt Commitment Letter will, together with Company cash and the contribution contemplated by the Rollover Letter, in the aggregate be sufficient for Merger Sub and the Surviving Corporation to pay the aggregate Merger Consideration and Designated Consideration (and any repayment or refinancing of debt contemplated by this Agreement, the Equity Funding Letters or the Debt Commitment Letter) 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 and the Rollover Letter are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent or other contingencies related to the funding of the full amount of the Financing. As of the date of this Agreement, 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 or Merger SubSub or, as applicable, or to the Knowledge knowledge of Parent, any other parties thereto, under the Financing Letters Equity Funding Letters, Rollover Letter or the Debt Commitment Letter; provided that makes Parent is not making any representation or warranty regarding the effect of the assumptions or statements set forth inaccuracy of the representations and warranties in the Financing Letters inaccurate in any material respectArticle III. As of the date hereof, and subject to the satisfaction of the conditions set forth in Article VI and the performance by the Company of its obligations under this Agreement, neither Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Financing contemplated in the Financing Letters will not be satisfied or that the Financing will not be made available to Parent and or Merger Sub at on the date of the Closing or prior that any of the conditions to the Closing Date. contribution contemplated in the Rollover Letter will not be satisfied or that the contribution contemplated by the Rollover Letter will not be made to Parent 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 before the date hereof pursuant to the terms of the Financing Letters. Other than Closing; provided that Parent is not making any representation regarding the Fee Letter accuracy of the representations and as warranties set forth in Schedule 3.10(c)Article III, or compliance by the Company of 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, and the Rollover Letter contains all of the conditions precedent to the obligations of the parties thereunder to make the contribution to Parent described therein. As of the date hereof, there are no side letters or other agreements, Contracts or arrangements to which Parent or any of its Affiliates is a party related to the funding or investing, as applicable, of the full amount of the Financing other than as expressly set forth in the Financing Letters.
(d) As , the Rollover Letter, the Interim Investors Agreement and any customary engagement letter and non-disclosure agreements that do not impact the conditionality or amount of the date hereof, none of Parent, Merger Sub or any of their respective Affiliates is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee of the Company or its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing LettersFinancing.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract
Sources: Merger Agreement (J Crew Group Inc)
Financing. (a) The aggregate amount of funds contemplated to be provided pursuant to the Financing Letters (as defined below), together with the cash on hand of Parent and its Subsidiaries, is sufficient, if funded, to (i) pay the aggregate Per Share Price and any other repayment or refinancing of Indebtedness contemplated by the Financing Letters; (ii) pay any and 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) satisfy all As of the other payment obligations date of Parentthis Agreement, Merger Sub and the Surviving Corporation contemplated hereunder.
(b) Parent and Merger Sub have delivered has provided to the Company a true, correct and complete copy of (i) the executed commitment letter (the “Equity Financing Letter”)copies, dated as of the date hereofof this Agreement, among Parent, Merger Sub and of (i) the other parties thereto (collectively, Equity Commitment Letter from the “Equity Financing Sources”)Investors, pursuant to which the Equity Financing Sources have committedInvestors have, severally (and not jointly) committed to provide, subject only to the terms thereofand conditions contained therein, funds equal to invest the cash amounts set forth therein Required Amount (the “Equity Financing”) and (ii) the executed commitment letter, dated as of Debt Commitment Letter relating to the date hereof, Land Banking Arrangement from Credit Suisse Securities (USA) LLC, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Senior Funding, Inc., Royal the Land Bank of Canada, RBC Capital Markets, SunTrust Bank, SunTrust ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc., and The Bank of Tokyo-Mitsubishi-UFJ, Ltd. (the “Debt Commitment Letter” and, together with the Equity Financing Commitment Letter, the “Financing Letters”), ) pursuant to which the lenders party thereto have committedLand Bank has committed to provide, subject only to the terms thereofand conditions therein, to lend the land bank funding in the amounts set forth therein (the “Debt Financing” (which term shall include, if applicable, high-yield bonds issued in lieu of certain of the debt facilities as land bank funding contemplated under by the Debt Commitment Letter) Letter being collectively referred to as the “Land Bank Financing”; and, together with the Equity Financing, the “Financing”). Parent has also delivered to the Company a true, complete and correct copy of any fee letter in connection with the Debt Commitment Letter (it being understood that any such fee letter provided to the Company may be redacted to omit the numerical amounts provided therein) (any such fee letter, a “Fee Letter”)
(c) As of the date hereofof this Agreement, the Financing Letters have not been amended or modified and none of the respective obligations and commitments contained in the Financing Letters have been withdrawn or rescinded in any respect. The Financing Letters, in the form so delivered to the Company on the date hereof, are in full force and effect as of the date hereof. The Financing Letters are (i) legal, valid and binding obligations of Parent and Merger Sub, as applicable, and, to the Knowledge of Parent, each of the other parties thereto and (ii) 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 except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally. The Financing Letters and the Fee Letter 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 precedent side letters or other contingencies related agreements to which Parent or Merger Sub is a party relating to the funding of Financing, other than as expressly set forth in the full amount of the FinancingFinancing Letters. As of the date of this Agreement, (A) each Financing Letter, in the form provided to the Company, (i) has not been amended, restated, replaced, supplemented, terminated, rescinded or modified (and no waiver of any provision thereof has been granted) and, to the knowledge of Parent, no such amendment, restatement, replacement, supplement, termination, rescission, modification or waiver is contemplated (other than to add lenders, lead arrangers, bookrunners, syndication agents or other entities who had not executed the Debt Commitment Letter as of the date of this Agreement), and (ii) is a legal, valid and binding obligation of Parent, Merger Sub and, to the knowledge of Parent, the Investors and the Land Bank, is in full force and effect, and is enforceable in accordance with the terms thereof against Parent, Merger Sub and, to the knowledge of Parent, the Investors and the Land Bank, subject, in each case, to the effect of any applicable bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in a proceeding at law or in equity), and (B) no event has occurred (and no event is reasonably expected to occur) which would reasonably be expected to result in any breach of or circumstance exists which, constitute a default under (or an event which with notice or without notice, lapse of time or bothboth would result in any breach of or constitute a default under) or reasonably be expected to result in a failure to satisfy a condition precedent, would in each case, on the part of Parent, Merger Sub or the Investors or would reasonably be expected to constitute a default or breach on the part of Parent or Merger Sub, as applicablepermit any party to such Financing Letters to terminate, or to not make the Knowledge of Parent, any other parties thereto, initial funding in an amount required to satisfy the Required Amount under the such Financing Letters or that makes any of the assumptions or statements set forth in the Financing Letters inaccurate in any material respectLetters. As of the date hereofof this Agreement, and subject to the satisfaction of assuming the conditions set forth in Annex A and Article VI and 7 have been satisfied (other than those conditions that by their terms are to be satisfied as of immediately prior to the performance by Expiration Time or the Company of its obligations under this AgreementClosing, neither as applicable, but subject to such conditions being able to be satisfied) or waived on or prior to the Closing, Parent nor Merger Sub has does not have any reason to believe that any of the conditions to the Land Bank Financing contemplated in the Financing Letters will not be satisfied or that (subject to the satisfaction of such conditions) the full amount of the Land Bank Financing contemplated by the Debt Commitment Letter to be funded on or prior to the Closing Date will not be made available to Parent or Merger Sub on or prior to the Closing Date.
(b) Assuming the Financing is funded or invested in accordance with the Financing Letters, Parent and Merger Sub will have on the Closing Date funds sufficient to pay the aggregate Offer Price and Merger Consideration (the “Aggregate Consideration”) and any other amounts required to be paid by Parent or Merger Sub on the Closing Date in connection with the consummation of the transactions contemplated hereby (including any fees and expenses of or payable by Parent or Merger Sub on the Closing Date in connection with the transactions contemplated hereby) (such amount, the “Required Amount”).
(c) As of the date of this Agreement, each Financing Letter (i) contains all of the conditions precedent to the obligations of the Investors and the Land Bank to make the applicable portion of the Required Amount available to Parent and Merger Sub at on the terms set forth therein, and (ii) does not contain any contingencies that would permit the applicable Investor or prior Land Bank to reduce, or rescind its obligation to provide, the Closing Datetotal amount of the Financing below the amount required to pay the Required Amount. As of the date of this Agreement, the obligations and commitments contained in the Financing Letters have not been withdrawn or rescinded in any respect. Each of Parent and Merger Sub have Sub, as applicable, has fully paid, or caused to be fully paid, any and all commitment fees or other fees which are due and payable to the extent required to be paid on or prior to the date hereof pursuant to in connection with the terms of the Financing Letters. Other than the Fee Letter and as set forth in Schedule 3.10(c), there are no side letters or other Contracts 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 as expressly set forth in the Financing LettersFinancing.
(d) As The Equity Commitment Letter provides, and will continue to provide, that the Company is an express third party beneficiary of the date hereofEquity Commitment Letter, none of Parentand, Merger Sub or any of their respective Affiliates subject to Section 9.16, the Company is a party to any Contracts, or any commitment to enter into any Contracts, with any Person (including any Company Stockholder, director, officer or employee on its own behalf and on behalf of the Company Company’s Stockholders) entitled to enforce, directly or indirectly, the Equity Commitment Letter in accordance with its Subsidiaries) concerning any investments to be made in, or contributions to be made to, Parent or Merger Sub in connection with terms against the Merger and/or any other transactions contemplated by this Agreement other than as set forth in the Financing LettersInvestors.
(e) As of the date hereof, neither Parent nor Merger Sub has (i) retained any financial advisor on a basis exclusive to Parent or Merger Sub other than advisors to which the Company Board (or any authorized committee thereof) has previously consented or (ii) entered into an exclusivity, lock-up or other similar agreement, arrangement or binding understanding with any bank or investment bank or other potential provider of debt or equity financing that explicitly prohibits such provider from providing or seeking to provide such financing or financial advisory services to any third party in connection with a transaction relating to the Company or its Subsidiaries (including in connection with the making of any Alternative Transaction Proposal), in the case of clauses (i) and (ii), in connection with the Merger or the other transactions contemplated by this Agreement. Neither Parent nor Merger Sub has caused or induced any Person to take any action that, if taken by Parent or Merger Sub, would be a breach of, or would cause to be untrue, any of the representations in this Section 3.10(e).
Appears in 1 contract