Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement. (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements. (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing. (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect. (e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii). (f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (PMC Sierra Inc), Agreement and Plan of Merger (Skyworks Solutions, Inc.), Merger Agreement (PMC Sierra Inc)
Financing. (a) Subject Tenant agrees to pay all reasonable costs and expenses incurred by Landlord in connection with the terms purchase, leasing and conditions initial financing of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notLeased Premises including, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision underlimitation, the Debt Commitment Letter if such amendmentreasonable cost of appraisals, supplementenvironmental reports, replacementtitle insurance, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financingsurveys, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete legal fees and correct copies of any such amendment, modification or replacementexpenses and Lender’s commitment fee.
(b) Parent shallIf Landlord desires to obtain or refinance any Loan, Tenant shall negotiate in good faith with Landlord concerning any request made by any Lender or proposed Lender for changes or modifications in this Lease, provided that Tenant shall not be obligated to agree to any change which increases its obligations hereunder in any material respect. In particular, Tenant shall agree, upon request of Landlord, to supply any such Lender with such notices and reasonable information as Tenant is required to give to Landlord hereunder and to extend the rights of Landlord hereunder to any such Lender and to consent to such financing if such consent is requested by such Lender. Tenant shall provide any other consent or statement and shall cause its Affiliates execute any and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided all other documents that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Lender requires in connection with the transactions contemplated by this Agreementsuch financing, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cashincluding any subordination, (y) Parent promptly notifies the Company of such substitution non-disturbance and reduction and (z) trueattornment agreement, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that same do not materially adversely affect the enforceabilityany right, availability benefit or conditionality ofprivilege of Tenant under this Lease or materially increase Tenant’s obligations under this Lease. Such subordination, nondisturbance and attornment agreement may require Tenant to confirm that (a) Lender and its assigns will not be liable for any misrepresentation, act or the aggregate amount omission of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, Landlord and (iiib) any reference in this Agreement to “fee letter” shall Lender and its assigns will not be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiiany counterclaim, demand or offsets which Tenant may have against Landlord (except for any Escrow Payments or Net Award actually held by Lender).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 4 contracts
Samples: Lease Agreement (Tower Automotive, LLC), Lease Agreement (Tower Automotive, LLC), Lease Agreement (Tower Automotive, LLC)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof Letter, including (including any “market flex” provisionsi) including using its reasonable best efforts to seek (x) satisfy on a timely basis all terms, covenants and conditions set forth in the Commitment Letter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter; and (z) consummate the Financing at or prior to Closing; and (ii) seeking to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderLetter. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver will furnish correct and complete copies of any provision under, the Debt Commitment Letter if all such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementpromptly upon their execution.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Debt Financing, and, promptly following request Financing contemplated by the Company, provide to Commitment Letter and shall give the Company copies prompt notice of all executed Debt Financing Agreements.
(c) any material adverse change with respect to such Financing. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is shall expire or be terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party notifies Parent that such source no longer intends to provide financing to Parent on the Debt Commitment Letter or any Debt Financing Agreement ifterms set forth therein, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates for any reason Parent no longer believes in writing or orally good faith that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth described therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor and shall it not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that would could reasonably be expected to materially impair, delay or prevent consummation of all the Financing contemplated by the Commitment Letter or any Alternate Financing contemplated by any Alternate Financing. Parent shall not amend or alter, or agree to amend or alter, the Commitment Letter in any manner that would prevent or materially impair or delay the consummation of Transactions without the prior written consent of the Company.
(c) If any portion of the Debt Financing.
(d) Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter or the Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, Parent shall have use its reasonable best efforts to arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the right Transactions (“Alternate Financing”) and to substitute obtain, and, if obtained, will provide the net cash proceeds received Company with a copy of, a new financing commitment that provides for at least the same amount of financing as such Commitment Letter as originally issued, to the extent needed to fund the Required Amounts, and on terms and conditions (including termination rights and funding conditions) no less favorable to Parent or Merger Sub than those included in the Commitment Letter (the “New Commitment Letter”). To the extent applicable, Parent shall use its reasonable best efforts to take, or cause to be taken, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Letter, including (i) using reasonable best efforts to (x) satisfy on a timely basis all terms, covenants and conditions set forth in the New Commitment Letter; (y) enter into definitive agreements with respect thereto on the terms and conditions contemplated by Parent after the date hereof New Commitment Letter; and (z) consummate the Alternate Financing at or prior to the Closing from consummated offerings or other incurrences of debt and (including notesii) by Parent for all or any portion of the Debt Financing by reducing commitments seeking to enforce its rights under the Debt New Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any Alternate Financing is obtained and a New Debt Commitment Letter is obtainedentered into, (i) any reference references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter refer to the extent then in effectNew Commitment Letter, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectas applicable.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Hexion Specialty Chemicals, Inc.), Merger Agreement (Huntsman International LLC)
Financing. (a) Subject Prior to the Closing, Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things, in each case, within its control, necessary, proper or advisable to arrange financing on the terms and conditions described in the Debt Commitment Letter. Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without Seller’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendment, modification or waiver (i) reduces the aggregate amount of the Financing, when taken together with Buyer’s cash on hand, to an amount below the amount required to satisfy Buyer’s obligations under this Agreement, (ii) impairs in any material respect the availability of the Financing, or (iii) amends the conditions precedent to the Financing in a manner that would reasonably be expected to delay in any material respect or prevent the Closing (provided that Buyer may, after consultation with Seller, replace or amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date hereof so long as such action would not reasonably be expected to materially delay or prevent the Closing), including using its commercially reasonable best efforts to (a) maintain in effect the Debt Commitment Letter, (b) satisfy on a timely basis, to the extent within its control, all terms and conditions applicable to Buyer to obtaining the debt financing set forth therein, (c) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Debt Commitment Letter, and (d) comply with its obligations under the Debt Commitment Letter.
(b) In the event of any Financing Failure Event (other than a Financing Failure Event caused by the breach by Seller of this Agreement), Parent to the extent any portion of the Financing is required to fund the Purchase Price and any other amounts required to be provided by Buyer for the consummation of the transactions contemplated hereby, Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange reasonably necessary for and obtain as promptly as practicable following the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies occurrence of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing Failure Event alternative debt financing (the “Debt Financing AgreementsAlternative Financing”) ), on substantially equivalent or more favorable terms in the terms aggregate from the same or other sources and conditions which do not include any incremental conditionality to the consummation of such alternative debt financing that are not materially less favorable more onerous to Parent than those contained Buyer (in the Debt Commitment Letter, (Caggregate) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of than the conditions set forth in the Debt Commitment LetterLetter in effect as of the date of this Agreement in an amount sufficient, which, subject to fulfilment of the conditions set forth in this Agreement, are available to Buyer, together with its cash on hand, to consummate the Debt Financing at or prior transactions contemplated hereby and to pay related fees and expenses earned, due and payable as of the Closing Date, it being understood and agreed that if Buyer proceeds with any Alternative Financing, Buyer shall be subject to the Closing, (D) same obligations with respect to comply such Alternative Financing as set forth in this Agreement with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior respect to the Effective TimeFinancing. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been orAlternative Financing is obtained, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent Buyer shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent Seller with a true and correct copy of the Company, take any action or enter into any transaction new financing commitment letter that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent provides for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Alternative Financing (the “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related each fee letters and associated engagement letters letter (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic subject to redaction so long as such redaction does not cover terms that do not would adversely affect the enforceabilityconditionality, availability or conditionality ofterm of the Financing). If applicable, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letterFinancing” shall include “Alternative Financing”, and any reference to “Debt Commitment Letter” shall include the “Alternative Financing Commitment Letter”.
(c) Notwithstanding the foregoing, in no event shall the commercially reasonable best efforts of Buyer be deemed or construed to include require Buyer to, and Buyer shall not be required to (i) pay in the aggregate any fee letter relating to fees in excess of $25,000 more than the fees contemplated by the Debt Commitment Letter or any related fee letter, (ii) agree to conditionality terms in connection with the Financing that is not superseded are materially less favorable than those contemplated by any New the Debt Commitment Letter, (iii) agree to economic terms of the Financing (including cost of capital, maturity and fees) that are less favorable than those contemplated by the Debt Commitment Letter at or any related fee letter (including any “flex” provisions therein), (iv) waive any terms or conditions of this Agreement or of the time in question and each New Debt Commitment Letter or (v) require Buyer to initiate, prosecute or maintain any action, suit, claim, arbitration or other legal proceeding against the Lender, other potential lenders or other Persons providing the Financing under the Debt Commitment Letter.
(d) During the period from the date of this Agreement to the Closing Date, Seller shall use its commercially reasonable best efforts, and to cause its Representatives to, provide Buyer all cooperation that is reasonably requested by Buyer in connection with the Financing, the proceeds of which shall be used to consummate the transactions contemplated hereby, which cooperation shall include, in any event:
(i) participation in a reasonable number of meetings, presentations, road shows, due diligence sessions (including accounting due diligence sessions), drafting sessions, sessions with prospective lenders and sessions with rating agencies;
(ii) making Seller’s officers reasonably available to assist the Lender;
(iii) cooperating reasonably with the Lender’s due diligence, to the extent then customary and reasonable, including delivery of corporate organizational documents, and lien searches contemplated by the Debt Commitment Letter;
(iv) assisting Buyer and the Lender with the preparation of customary materials for rating agency presentations (and assisting in effectthe obtaining of corporate, credit and facility ratings from ratings agencies), offering documents, bank information memoranda (including the delivery of customary authorization and representation letters authorizing the distribution of information to prospective lenders or investors and containing a representation that the public side versions of such documents, if any, do not include material non-public information regarding Purchased Assets and the Joe’s Business), and all other material required in connection with the Financing and all documentation and other information reasonably required in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; provided that, at least 5 Business Days prior to the Closing, Seller shall provide all such documentation and information about the Purchased Assets and the Joe’s Business as is reasonably requested in writing by Buyer at least 7 Business Days prior to the Closing to the extent required under applicable “know your customer” and anti-money laundering rules and regulations including the PATRIOT Act;
(v) assisting with the preparation of, and executing and delivering, any pledge and security documents, any loan agreement, notes, other definitive financing documents, legal opinions, or any other documents that facilitate the preparation of the definitive documentation for the Financing or the creation, perfection of liens securing the Financing as may be reasonably requested by Buyer in connection therewith;
(vi) facilitating the pledging of collateral and providing reasonable access in connection with any collateral audits and appraisals required in connection with the Financing;
(vii) assisting Buyer in preparing customary financial information and disclosures regarding the Purchased Assets or the Joe’s Business, as may be reasonably requested by Buyer and identifying any portion of such information that constitutes material non-public information;
(viii) instructing its independent accountants to cooperate with and assist Buyer in preparing customary and appropriate information packages and offering materials as the Lender or other prospective lenders may reasonably request for use in connection with the Financing and using commercially reasonable best efforts to cause such accountants to consent to the use of their reports in any material relating to the Financing (including, but not limited to, the audited financial statements referred to in the definition of “Required Information” set forth herein);
(ix) using commercially reasonable best efforts to obtain customary payoff letters, lien releases, instruments of termination, waivers, consents, estoppels, approvals or discharge, in each case reasonably requested by Buyer in connection with the Financing and collateral arrangements; and
(x) taking such corporate or entity actions, subject to the occurrence of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available at the Closing; provided, that (A) no such requested cooperation may unreasonably interfere with the ongoing operations of Seller, (B) no obligation of Seller under any certificate, agreement, notice or other document or instrument shall be effective until the Closing, and Seller shall not be required to pay or incur any liability for any commitment or other similar fee, pay or incur any liability for any expense (other than as provided in this Agreement) or incur any other obligation or liability in connection with the Financing prior to the Closing unless promptly reimbursed by Buyer (provided that notice of such fee, liability or expense is provided to Buyer) and (C) neither Seller nor its directors or officers shall be required to take any action to authorize or approve the Financing (or any Alternative Financing).
(e) On Seller shall use reasonable best efforts to, as promptly as practicable, update or correct any Required Information determined to contain any untrue statement of material fact or omit to state any material fact necessary to make the Closing Date, Parent shall provide all funds required statements contained therein not materially misleading. Seller hereby consents to effect the repayment reasonable use of all indebtedness under the Company Credit Agreement its and its Subsidiaries’ logos in full in accordance connection with the Company Credit AgreementFinancing, subject provided that such logos are used solely in a manner that is not intended to compliance with Section 6.14(a)(iii)or reasonably likely to harm or disparage Seller or its Subsidiaries or the reputation or goodwill of Seller or its Subsidiaries or any of their logos.
(f) Notwithstanding anything Seller shall prepare and furnish to Buyer and Parent, as promptly as reasonably practicable (and, in any event, no later than the contrary contained hereintime periods (if applicable) specified in the definition of “Required Information”), Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementRequired Information.
Appears in 3 contracts
Samples: Asset Purchase Agreement (Sequential Brands Group, Inc.), Asset Purchase Agreement (Joe's Jeans Inc.), Asset Purchase Agreement
Financing. (a) Subject to the terms and conditions of this Agreement, each of Holdco and Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, necessary and advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision underor remedy under any Financing Commitment; provided, that Parent and Merger Sub may amend or modify the Financing Commitments and/or elect to replace all or any portion of the Debt Commitment Letter if such amendmentFinancing and/or Equity Financing with alternative debt and/or equity financing (the “Alternative Financing”), supplement, replacement, modification in each case so long as (i) the aggregate proceeds of the Financing (as amended or waiver modified) and/or any Alternative Financing will be sufficient for Merger Sub and the Surviving Corporation to pay (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or Merger Consideration, and (B) imposes any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and all related fees and expenses associated therewith, (ii) the amendment or modification or the Alternative Financing does not impose new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies the existing conditions in any other provision of way and (iii) the Debt Commitment Letter in a manner that amendment or modification or the Alternative Financing would not or would not reasonably be expected to (x) prevent or materially delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, Transactions or (y) adversely affect impact the ability of Parent or Merger Sub to enforce its their respective rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)Financing Commitments. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) . In addition, Holdco, Parent shall, and Merger Sub shall cause its Affiliates and Representatives to, use its their respective reasonable best efforts to (Ai) subject to its rights under the first sentence of this Section 6.07(a), maintain in full force and effect the Debt Commitment Letter Financing Commitments until the Transactions are consummated, (provided that ii) negotiate any definitive agreements in addition to the Debt Commitment Letter may be amendedLoan Agreement and as contemplated by the Loan Agreement (including, supplementedwithout limitation, replaced, modified or waived as provided the Company Security Documents defined in this Section 6.13the immediately following section (c)), (B) with respect to negotiate the Senior Debt Financing and enter into definitive agreements with respect to the Mezzanine Debt Commitment Letter (Financing, and the “Debt Equity Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Note Purchase Agreement and the Equity Commitment LetterLetters, (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of in the full amount of the Debt Financing at the Closing set forth therein Commitments that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to and otherwise comply with its obligations under the Debt Commitment Letterthereunder, and (Eiv) to consummate the Debt Financing at or prior to the Effective TimeTime and (v) assuming all terms and conditions of the Debt Financing have been satisfied, cause the Lender or the Sponsor to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby; provided, that under no circumstance shall Parent or Merger Sub be under any obligation to seek through litigation or other legal proceeding to enforce its rights against any Lender. In the event that all conditions precedent expressly set forth in to funding under the Debt Financing Commitments (other than the Equity Commitment Letter Letters) have been orsatisfied, upon funding of the Debt Financing will be, satisfiedHoldco, Parent and Merger Sub shall use their respective reasonable best efforts to enforce their rights undercause the Sponsor and Mr. Zishen Wu to fund the Equity Financing required to consummate the transactions contemplated under this Agreement, including the Merger in accordance with the terms of this Agreement (including taking enforcement actions to cause such persons to provide such Equity Financing in the event conditions (A) through (D) under Section 9.07(b)(i) have been satisfied). For purposes of this Section 6.07, references to “Financing” shall include the financing contemplated by the Financing Commitments as permitted to be replaced, amended or supplemented by this Section 6.07(a), and cause the references to “Financing SourcesCommitments” shall include such documents as permitted to be replaced, lenders and the other persons providing amended or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request supplemented by the Company, provide to the Company copies of all executed Debt Financing Agreementsthis Section 6.07(a).
(cb) Without limiting the foregoinggenerality of Section 6.07(a), Holdco and Parent agrees to notify shall give the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date prompt notice: (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any material breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would could reasonably be expected to affect the availability give rise to any breach or default) by any party to any Financing Commitment, which would be reasonably likely to result in any condition of the Debt Financing Commitment not to be satisfied or the termination of any Financing Commitment, of which Parent or Merger Sub becomes aware; (ii) of the receipt of any written notice or other written communication from any party to any Financing Commitment with respect to any alleged or potential breach, default, termination or repudiation by any party to any Financing Commitment or any provisions of the Financing Commitment related to the Financing which could result in any condition of the Financing Commitment not to be satisfied or the termination of any Financing Document; (iii) a counterparty indicates in writing of any material dispute or orally disagreement between or among any parties to the Financing Commitment; and (iv) if Holdco, Parent or Merger Sub at any time believes that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyCommitments. In the event any New portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments, (A) Parent shall promptly notify the Company, and (B) Holdco and Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not less favorable to Holdco, Parent and Merger Sub (as determined in the reasonable judgment of Parent), in an amount sufficient to consummate the Merger as promptly as possible, but in any event no later than the earlier of (x) thirty (30) days after the originally contemplated Closing Date, or (y) the Termination Date.
(c) The Company agrees to provide, and shall cause each Company Subsidiary and each of their respective Representatives to provide to Parent and Merger Sub, all reasonable cooperation as may be requested by Parent or its Representatives in connection with the Debt Commitment Letter is obtainedFinancing and any Alternative Financing, including, without limitation, (i) causing the Company’s independent accountants to provide assistance and cooperation to Parent and its representatives, including participating in drafting sessions and accounting due diligence sessions, assisting in the preparation of any reference in this Agreement pro forma financial statements, providing consent to Parent to use audit reports relating to the Company and the Company Subsidiaries and providing any necessary “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowcomfort letters”, (ii) assisting in the negotiation of, and executing and delivering, definitive financing documents, including pledge and security documents, and certificates (including a certificate of the chief financial officer of the Company (or any reference in this Agreement of the Company Subsidiaries) with respect to solvency matters before giving effect to the “Debt Commitment Letter” shall Financing or Alternative Financing, the consummation of the Transactions, any matters relating to Parent or any actions to be deemed to include taken from and after the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Closing), legal opinions, management representation letters or other documents, to the extent then reasonably requested by Parent and otherwise reasonably facilitating the pledging of collateral or consummation of the Debt Financing or Alternative Financing, (iii) providing reasonable access by Parent and any Debt Financing or Alternative Financing sources, and their respective officers, employees, consultants and advisors (including legal, valuation, and accounting advisors) to the books and records, properties, officers, directors, agents and representatives of the Company and each of the Company Subsidiaries, (iv) obtaining surveys and title insurance reasonably requested by Parent, (v) using commercially reasonable efforts to obtain consents customary for financings similar to the Debt Financing or Alternative Financing, (vi) taking all reasonable actions necessary to (x) permit the prospective lenders involved in effectthe Debt Financing or Alternative Financing to evaluate the Company’s assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements and (y) establish bank and other accounts and blocked account Contracts and lock box arrangements in connection with the foregoing, and (iiivii) take all other corporate actions reasonably necessary to permit the consummation of the Debt Financing or Alternative Financing; provided, that (A) none of the Company or any reference in this Agreement to “fee letter” of the Company Subsidiaries shall be deemed required to include become subject to any fee letter relating obligations or liabilities with respect to definitive financing documents, including pledge and security documents prior to the Debt Commitment Letter Closing and none of the Company or any Company Subsidiary shall be required to take any action that is not superseded by any New Debt Commitment Letter at contingent upon the time in question and each New Debt Commitment Letter Closing or that would be effective prior to the Effective Time, (B) nothing herein shall require such cooperation to the extent then in effect.
(e) On it would interfere unreasonably with the Closing Date, Parent shall provide all funds required to effect the repayment business and operations of all indebtedness under the Company Credit Agreement in full in accordance with or the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
Subsidiaries and (fC) Notwithstanding anything to none of the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Company or any of its Affiliates’ obtaining funds the Company Subsidiaries shall be required to consummate issue any offering or information document prior to the Merger Effective Time. Notwithstanding any other provision of this Agreement, none of the Company or any of the Company Subsidiaries shall be required to take any action that would subject it to actual or potential liability, to bear any cost or expense or to pay any commitment or other similar fee or make any other payment which the Parent does not agree to reimburse the Company for or incur any other liability or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable out of pocket costs and expenses incurred by the Company and the transactions Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this AgreementSection 6.07 and shall indemnify and hold harmless the Company and the Company Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing or Alternative Financing and any information utilized in connection therewith except with respect to any information provided by the Company or any of the Company Subsidiaries. The Company hereby consents to the use of its and the Company Subsidiaries’ logos in connection with the Debt Financing or Alternative Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any Company Subsidiary.
Appears in 3 contracts
Samples: Merger Agreement (Full Alliance International LTD), Merger Agreement (Yongye International, Inc.), Merger Agreement (Morgan Stanley)
Financing. (a) Subject to the terms Without limiting Section 6.4, each of Parent OP and conditions of this Agreement, Parent Sub shall use its reasonable best efforts to (and shall cause their Affiliates to) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain consummate the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Parent Revolving Credit Facility (without, for the avoidance of doubt, any requirement to bring any legal action against the terms thereof (Lender) , including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent satisfying on a timely basis all terms, covenants and conditions set forth in the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateParent Revolving Credit Facility, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the entering into definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter on terms and conditions substantially similar to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to contemplated by the Parent than those contained in Revolving Credit Facility and (z) consummating the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis OP will furnish correct and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company complete copies of all executed Debt Financing Agreementssuch definitive agreements to the Representative promptly upon their execution.
(cb) Without limiting the foregoing, Parent agrees to notify OP and Parent Sub shall keep the Company and the Representative informed on a reasonably current basis with respect to all material activity concerning the status of their efforts to arrange and consummate the Financing and shall give the Company and the Representative prompt notice of any material adverse change with respect thereto. Parent OP and Parent Sub agree to provide written notice to the Company and the Representative promptly, and in any event within two (2) Business Days, if at any time prior any financing source that is to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source be a party to the Debt Commitment Letter Parent Revolving Credit Facility notifies Parent OP or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates Parent Sub in writing that such source no longer intends to provide financing to Parent OP or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter Parent Sub on substantially the terms set forth therein, or Parent OP or Parent Sub believes in good faith that it will be unable to obtain the Financing on substantially the terms described in the Parent Revolving Credit Facility. None of Parent OP or Parent Sub shall promptly provide amend or alter, or agree to amend or alter, the Parent Revolving Credit Facility in any information manner that would be materially adverse to the Contributors or reasonably requested by likely to prevent or materially impair or delay the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any consummation of its Affiliates tothe Contemplated Transactions, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or Representative.
(c) If any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof Financing becomes unavailable on terms and prior conditions substantially similar to the Closing terms and conditions contemplated in the Parent Revolving Credit Facility or the Parent Revolving Credit Facility shall be modified in a manner materially adverse to Parent OP, Parent Sub or the Contributors, Parent OP and Parent Sub shall (and shall cause their Affiliates to) obtain and as promptly as reasonably practicable provide the Company and the Representative with a copy of, a new credit facility (the “New Facility”) from consummated offerings or other incurrences of debt alternative sources on terms and conditions substantially similar to the terms (including noteswith respect to interest rate and fees) by and conditions contemplated in the Parent for all Revolving Credit Facility or any portion other financing of the Debt type permitted by Section 3.F of the Tax Matters Agreements as refinancing of the Financing by reducing commitments (“Alternate Financing”); provided, that such New Facility and such Alternate Financing must (i) provide for aggregate debt financing to Parent OP that has the benefit of the Member Guarantees in an amount equal to $550,000,000 (it being understood that a lesser amount may be required to satisfy the Parent Parties’ obligations under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letterthis Agreement), (wii) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents be available to Parent, is sufficient to pay all fund the Special Distribution Amount and other amounts required to be paid in connection with funded from the transactions contemplated by Financing, and (iii) otherwise satisfy the requirements for the Financing under this Agreement. To the extent applicable, Parent OP and Parent Sub shall (and shall cause their Affiliates to) take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Facility, including (x) satisfying on a timely basis all terms, covenants and conditions set forth in the proceeds New Facility (without, for the avoidance of such debt offerings or other incurrences have been received by Parent in cashdoubt, any requirement to bring any legal action against the Lender); (y) Parent promptly notifies entering into definitive agreements with respect thereto on terms and conditions substantially similar to the Company of such substitution terms and reduction conditions contemplated by the New Facility; and (z) true, correct and complete copies of each material amendment consummating the Alternate Financing at or modification prior to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the CompanyClosing. In the event any Alternate Financing is obtained and a New Debt Commitment Letter Facility is obtainedentered into, (i) any reference references in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” applicable Parent Revolving Credit Facility shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFacility, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) as applicable. Notwithstanding anything to the contrary contained hereinin this Agreement, Parent’s obligations hereunder are Parent REIT, Parent OP and Parent Sub acknowledge and agree that obtaining the Financing, or any Alternate Financing, is not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to their respective obligations to consummate the Merger Contemplated Transactions at Closing; provided, that the Parent Parties shall not be deemed to have breached Section 6.5(a) if they obtain Alternate Financing in accordance with Section 6.5(c).
(d) The Company agrees to use, and to cause the transactions contemplated Group Companies to use, reasonable efforts to provide all cooperation reasonably requested by Parent OP in connection with the Financing (including, as applicable, any Alternate Financing), including without limitation: (i) providing and causing their advisors to provide all available information reasonably deemed reasonably necessary by Parent OP or the Lenders to complete syndication of the Financing, including, but not limited to available financial information that is customarily provided in such financings and is deemed necessary by Parent OP or the Lenders for the consummation of such Financing; (ii) assisting in the preparation and updating of the information memoranda and other materials to be used in connection with the Financing and any related syndication efforts, including, as applicable, participating in due diligence and drafting sessions; (iii) cooperating in procuring any requisite rating for the Financing from an accredited rating agency; (iv) making the officers and advisors of the Group Companies available from time to time to attend and make presentations regarding their respective businesses; and (v) assisting in the preparation of definitive agreements and other certificates and documents, as may be reasonably requested in connection with the foregoing, provided, however, that with respect to all matters described in this AgreementSection 6.5(d) no Group Company shall be required to execute any document or make any statements, certifications, or analysis for the benefit of Parent REIT, Parent OP or Parent Sub or any other Person other than documents, statements, certifications and analyses to become effective immediately after the Closing.
Appears in 3 contracts
Samples: Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Contribution Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Financing. (a) Subject The Company will, and will cause each of its Subsidiaries to, use its reasonable best efforts to cause its and their respective Representatives to, at Parent’s sole cost and expense, cooperate with the Parent and take such actions as the Parent may reasonably request in connection with the procurement and consummation of the Financing (or any Alternative Financing); provided that nothing contained in this Section 6.9 shall require such cooperation to the terms extent it would unreasonably interfere with the ongoing operations of the Company and conditions of this Agreement, its Subsidiaries.
(b) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable proper or proper advisable, to arrange and obtain (i) maintain in effect the Debt Financing Letter and to satisfy the conditions for obtaining the Financing, (ii) enter into definitive financing agreements with respect to the Financing so that such agreements are in effect no later than the Share Acceptance Time and (iii) consummate the Financing on or prior to the Share Acceptance Time. Without limiting the generality of the foregoing, in the event that Parent has been notified by the lenders party to the Debt Financing Letter that any portion of the Financing will not be available on the terms and conditions described in contemplated by the Debt Commitment Letter pursuant to Financing Letter, the terms thereof (including any “market flex” provisions) including using Parent shall promptly notify the Company in writing and use its reasonable best efforts to seek obtain alternative debt financing (“Alternative Financing”) in an amount at least sufficient to, in addition to enforce its rights the cash and marketable securities of CIFSA and the portion of the Financing that remains available on the terms and conditions contemplated by the Debt Financing Letter, pay when due for all of the Shares tendered and not properly withdrawn in the Offer and the aggregate Merger Consideration. Parent shall not agree to any amendments or modifications to, or waivers of, any condition or other material provision under the Debt Commitment Financing Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver consent of any provision under, the Debt Commitment Letter Company if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes would impose new or additional conditions to the initial funding receipt of the Financing or otherwise expands amend, modify or waive any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x) cause any delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in Annex I or Article VII. Notwithstanding the Debt Commitment Letterforegoing, neither the Parent nor the Purchaser shall be required to consummate the Debt Financing at (i) waive any conditions and requirements set forth in Annex I or prior Article VII, (ii) consent to any changes to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly as set forth in the Debt Commitment Letter have been or, upon funding of or (iii) accept Alternative Financing on terms less favorable to the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Purchaser in the aggregate than the Financing Sourceswould have been. In the event the Parent obtains Alternative Financing, lenders and the other persons providing or committing provisions of this Section 6.9 shall apply to provide the Debt such Alternative Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and same extent it applies to fund on or before the Effective Time the Debt Financing. The Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its reasonable best efforts to arrange finalize the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or arrange any portion of the Debt Alternative Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii)6.9.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 3 contracts
Samples: Merger Agreement (COV Delaware Corp), Merger Agreement (Ev3 Inc.), Merger Agreement (Covidien PLC)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts not agree to takeor permit any amendment, supplement or other modification of, or cause to be taken, all actions and to doany termination of, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including waive any “market flex” provisions) including using its reasonable best efforts to seek to enforce of its rights under under, the Debt Commitment Letter Financing Letters, in the event of a breach thereof by the financing provider(s) thereunder. Parent shall noteach case, without the Company’s prior written consentconsent (which consent shall not be unreasonably withheld or delayed), permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver would, or would reasonably be expected to, (Ai) reduces reduce the aggregate amount of the Debt Financing, including by changing the amount of fees or original issue discount payable pursuant to the Financing Letters, below the Required Amount (after taking into account cash proceeds from on hand of Parent and its Subsidiaries that is reasonably expected to be available at the Closing to pay the Required Amount and other committed funds available to Parent or any of its Subsidiaries with conditions to funding no more onerous than those conditions to funding contained in the Debt Commitment Letter whereupon such other committed funding source shall be deemed to also be “Debt Financing” and the documentation in respect thereof shall be deemed to be a “Financing or Letter” and a “Debt Commitment Letter”), (Bii) imposes impose new or additional conditions to the initial funding Debt Financing, or otherwise expands expand, amend or modify any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected more onerous than those conditions to (x) delay or prevent the funding contained in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) Commitment Letter on the Closing Datedate hereof, or (yiii) adversely affect the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (Biv) any other party to prevent or delay the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability consummation of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion the consummation of the Debt Transactions. Upon any such amendment, supplement or other modification of the Financing contemplated by the Debt Commitment Letter on Letters in accordance with this Section 5.15(a), the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not“Financing Letters”, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” and/or “Fee Letters”, as applicable, shall be deemed to include mean the Financing Letters, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at and/or the time in question and each New Debt Commitment Letter to Fee Letters, as the extent then in effectcase may be, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectas so amended, supplemented or modified.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Regal Rexnord Corp), Merger Agreement (Altra Industrial Motion Corp.)
Financing. (a) Subject The Company shall use commercially reasonable efforts, and shall cause its Subsidiaries to use commercially reasonable efforts, and shall use its commercially reasonable efforts to cause its and its Subsidiaries’ respective officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the “Company Representatives”) to, at Parent’s sole expense, provide all cooperation that is reasonably necessary or customary and reasonably requested by Parent to assist Parent in the arrangement of bank financing and/or bond offerings for the purpose of financing the Merger, the fees and expenses incurred in connection therewith 74 and the other transactions contemplated hereby (the “Debt Financing”), including assisting with the preparation of materials for presentations, memoranda and similar documents required in connection with the Debt Financing; provided, however, that (x) nothing herein shall require such cooperation to the terms extent it would (A) unreasonably disrupt the conduct of the Company’s and conditions the Subsidiaries’ respective businesses, (B) require the Company or any of this the Subsidiaries or any of the Company Representatives to pay any fees or expenses or otherwise incur any liability or give any indemnities prior to the Effective Time (except to the extent any such fee or expense is conditioned on the consummation of the Merger or Parent has advanced the amount of such fees, expenses or liabilities to the Company or the Subsidiaries), and (C) require the preparation or delivery of (i) financial statements, other than those contemplated by Sections 5.1(c) and 5.1(d), or (ii) pro forma financial information or forecasts of the Company and the Subsidiaries and (y) any documentation executed by the Company or any of its Subsidiaries shall not become effective until the consummation of the Closing. Notwithstanding anything to the contrary provided herein or in the Confidentiality Agreement, Parent shall use be permitted to share all information subject to such agreement with its reasonable best efforts financing sources, subject to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof customary confidentiality undertakings by the such financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements sources with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementthereto.
(b) Parent shall, shall indemnify and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability hold harmless each of the parties to consummate Company, the Merger, Subsidiaries and their respective Company Representatives and any Seller Indemnified Party from and against any and all conditions to receipt of Losses suffered or incurred by them in connection with the full amount arrangement of the Debt Financing at and the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction performance of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its their respective obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingthis Section 5.17. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, andshall, promptly following upon request by of the Company, provide to reimburse the Company copies and the Subsidiaries for all out-of-pocket costs and expenses incurred by the Company or the Subsidiaries (including those of all executed Debt Financing Agreementstheir respective Company Representatives) in connection with the cooperation required by this Section 5.17.
(c) Without limiting the foregoing, Each of Parent and Xxxxxx Sub acknowledges and agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date that (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability obtaining of the Debt Financing or (iii) is not a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior condition to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underClosing, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.and
Appears in 2 contracts
Samples: Acquisition Agreement, Acquisition Agreement
Financing. (a) Subject Xxxxxxx agrees to the terms use, and conditions of this Agreementto cause Parent and Purchaser to use, Parent shall use its reasonable best efforts to take, complete the transactions contemplated by the Commitment Letters on or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain before the Debt Financing scheduled Closing Date on the terms and conditions described in the Debt Commitment Letter pursuant to Letters, including by maintaining the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete Letters and correct copies of any such amendment, modification or replacement.
(b) Parent shall, negotiating and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter entering into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) and Equity Financing on the terms and conditions that are not materially less favorable to Parent than those contained in contemplated by the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeLetters. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfiedUpon request, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall will keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, such financing and provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent material definitive documents for such financing. Xxxxxxx agrees to notify the Company promptlyuse, and in any event within two (2) Business Daysto cause Parent and Purchaser to use, if at any time prior reasonable best efforts to enforce their respective rights under the Closing Date (i) Commitment Letters and the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party definitive agreements with respect to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifand Equity Financing, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability including by seeking specific performance of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereinparties thereunder. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent Xxxxxxx shall not, nor and shall it permit any of its Affiliates cause Parent and Purchaser not to, without the prior written consent of the Company, take terminate the Equity Commitment Letter, or permit any action amendment, modification or enter into any transaction that would reasonably be expected to materially impairsupplement to, delay or prevent consummation of all or any portion waiver of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings any provision or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default remedy under, or violation ofreplace, the Equity Commitment Letter. Xxxxxxx shall not, and shall cause Parent and Purchaser not to, without the prior written consent of the Company, (i) terminate any Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the unless such Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid replaced in connection a manner consistent with the transactions contemplated by this Agreementfollowing clause (ii), or (xii) the proceeds permit any amendment, modification or supplement to, or any waiver of such debt offerings any provision or other incurrences have been received by Parent in cashremedy under, (y) Parent promptly notifies the Company of such substitution and reduction and (z) trueor replace, correct and complete copies of each material amendment or modification to the any Debt Commitment Letter relating thereto will be promptly provided if such amendment, modification, supplement, waiver or replacement (A) would (1) add any new condition to the Company. If commitments under the any Debt Commitment Letter have been reduced or modify any existing condition in a manner materially adverse to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. FurtherXxxxxxx, Parent shall have or Purchaser or that would be reasonably expected to materially adversely affect the right ability of Xxxxxxx, Parent and Purchaser to substitute commitments in respect of consummate the Merger and the other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent or the likelihood of their doing so, or (2) be reasonably expected to make the timely funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case any of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant or satisfaction of the conditions to clause (ii) belowfunding of any such financing less likely to occur in any material respect, (iiB) any reference in this Agreement to reduces the “Debt Commitment Letter” shall be deemed to include aggregate amount of the financing contemplated by the Debt Commitment Letter which is not superseded to an amount less than that which, when taken together with the funding contemplated by a New Debt the Equity Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.the
Appears in 2 contracts
Samples: Merger Agreement (Dole Food Co Inc), Merger Agreement (Murdock David H)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash terms and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions conditions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment LetterFinancing Letter (other than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such event, to supplement or replace the Debt an “Original Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment LetterFailure”), together with all related fee letters Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and associated engagement letters (solely conditions not less favorable to Buyer than those contained in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Fee Letter and in an amount at least
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Laclede Gas Co)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall Purchaser will, and will cause MIFSA to, use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to and the terms thereof Debt Fee Letter (including any “market flex” provisionsprovisions related thereto) including using its reasonable best efforts on or prior to seek the Closing Date, and will cause MIFSA to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit agree to any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Debt Fee Letter if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the Financing to an amount that, together with the Purchaser’s and its Affiliates’ cash proceeds from on hand or available committed credit facilities, would be less than an amount that would be required to fund the Debt Financing cash payments required to consummate the transactions contemplated hereby, (ii) adds new (or (Bexpands or adversely changes any existing) imposes new or additional conditions to obtaining the initial funding Financing unless such amendment, modification or otherwise expands any of waiver results in conditions that are in the aggregate substantially equivalent to the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of in the Debt Commitment Letter in a manner and the Debt Fee Letter immediately prior to such amendment, modification or waiver (or that are more favorable to the Purchaser and its Affiliates) or (iii) would reasonably be expected to (xA) materially delay or prevent the Closing, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, materially less likely to occur or (yC) materially adversely affect impact the ability of Parent MIFSA or its Affiliates to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (thereto; provided, however, that Parent Purchaser may cause MIFSA to amend or replace the Debt Commitment Letter or the Debt Fee Letter to (i) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Commitment Letter as such action would not reasonably be expected of the date of this Agreement or (ii) implement or exercise any “flex” provisions provided in the Debt Fee Letter as in effect on the date of this Agreement. Purchaser will cause MIFSA to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to (AI) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (BII) satisfy (or, if deemed advisable by MIFSA, obtain the waiver of, and cause each of its Affiliates to satisfy) on a timely basis all conditions to the Financing that are within Purchaser and its Affiliates’ control, (III) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, Letter or consistent in all material respects with the Debt Commitment Letter and the Debt Fee Letter (Cincluding any “flex” provisions contained therein) to satisfy on and (IV) draw a timely basis (or obtain the waiver of), and in a manner that will not impede the ability sufficient amount of the parties Financing to enable Purchaser to consummate the Mergertransactions contemplated hereby, all conditions to receipt of in the full amount of the Debt Financing at the Closing set forth therein event that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in Sections 7.01 and 7.02 and the Debt Commitment Letter, to consummate the Debt Financing at or prior conditions to the Closingavailability of the Financing have been satisfied or waived (other than those conditions that by their nature are to be satisfied on the Closing Date). Purchaser shall cause the net proceeds from the Financing to be available to Purchaser on the Closing Date. Upon the request of the Company or Seller, Purchaser will keep Seller and the Company reasonably informed on a reasonably current basis of the status of Purchaser’s efforts to obtain the Financing, including providing Seller with prompt notice of (Dx) to comply with its obligations under the Debt Commitment Letterany repudiation, and (E) to consummate the Debt Financing at termination or prior to the Effective Time. In the event that all conditions precedent expressly set forth in breach of the Debt Commitment Letter have been orby any party thereto, upon funding of the Debt Financing will be, satisfied, Parent which Purchaser becomes aware and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (iy) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware occurrence of any breach other event or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction development that would reasonably be expected to materially impair, delay or prevent consummation adversely impact the ability of Purchaser to obtain all or any portion of the Financing.
(b) The Company agrees to, and to cause its Subsidiaries to, use reasonable best efforts to, prior to the earlier of the Closing Date and the termination of this Agreement in accordance with its terms, provide such assistance (and to use reasonable best efforts to cause its and its Subsidiaries’ Representatives to provide such assistance) with the Financing as is customary with Financings of the type contemplated by the Debt Commitment Letter (including the senior notes offering contemplated thereby) and reasonably requested by Purchaser, including: (a) participation in, and assistance with, the marketing efforts related to the Financing, including assisting Purchaser with Purchaser’s preparation of customary confidential information memoranda, private placement memoranda, prospectuses, offering memoranda and other customary marketing materials and information reasonably deemed necessary by the Financing Sources to complete a successful syndication for delivery to potential syndicate members and participants; (b) participation by senior management, representatives and advisors of the Company in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies, roadshows, due diligence sessions, drafting sessions and meetings with prospective lenders and debt investors (including, for the avoidance of doubt, direct contact with such rating agencies and prospective lenders and debt investors), in each case, at such times as coordinated reasonably in advance thereof; (c) delivery to Purchaser and its Financing Sources as promptly as reasonably practicable of (i) the documentation and other information requested by the Financing Sources with respect to (x) applicable “know-your-customer” and anti-money laundering rules and regulations, including the PATRIOT Act and (y) the U.S. Treasury Department’s Office of Foreign Assets Control and the FCPA (and, in any event, at least three (3) Business Days prior to the Closing Date, to the extent requested at least nine (9) days prior to the Closing Date), (ii) the Financing Information relating to the Company and (iii) such other financial information relating to the Company customary or reasonably necessary for the completion of the Financing to the extent reasonably requested by Purchaser in connection with the preparation of customary offering or information documents to be used for the Financing (which financing information, for the avoidance of doubt, may be included in any such offering or information documents used for or distributed in connection with the Financing); (d) direct its independent auditors to cooperate with the Financing consistent with their customary practice, including by providing customary “comfort letters” (including customary “negative assurances”) and customary assistance with the due diligence activities of Purchaser and its Affiliates and the Financing Sources, and customary consents to the inclusion of audit reports in any relevant marketing materials, registration statements and related government filings, in each case, in connection with any proposed issuance and sale of securities; (e) assisting Purchaser with preparing pro forma financial information regarding the Company and its Subsidiaries as part of Purchaser’s preparation of pro forma financial information and pro forma financial statements for Purchaser and its Subsidiaries on a consolidated basis and other materials for rating agency presentations, bank information memoranda, offering or private placement memoranda, financial projections for the Company as part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, and similar documents used in connection with the Financing and assisting Purchaser in preparing customary estimates and other forward looking financial information regarding the future performance of the Company as a part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, to the extent reasonably requested by the Financing Sources, and providing customary management representation letters to its accountants in relation to its accountants’ providing “comfort letters” in connection with any securities offering made as part of the Financing (“Representation Letters”); (f) executing and delivering definitive financing documents (but excluding, for the avoidance of doubt, authorization letters), including certificates (but not solvency certificates), Representation Letters, and other documents, to the extent reasonably requested by Purchaser; and (g) assisting Purchaser and its Affiliates in causing the conditions precedent in the Debt Commitment Letter to the Financing to be satisfied. If at any xxxx Xxxxxx believes in good faith that it has delivered to Purchaser all Financing Information and such Financing Information is Compliant, it may deliver a written notice to Purchaser to such effect, in which case the Financing Information shall be deemed to have been delivered and to be Compliant as of the date of delivery of such notice, unless Purchaser in good faith reasonably believes either any Financing Information has not been received or is not Compliant and, within five (5) consecutive Business Days after the date of Purchaser’s receipt of the aforementioned notice, delivers a written notice to Seller to that effect and stating with specificity what Financing Information it believes it has not received or is not Compliant; provided, however, that (x) for the avoidance of doubt, notwithstanding such five (5) consecutive Business Day period, if Purchaser does not deliver any such written notice during such period, the Financing Information shall be deemed to have been delivered, and to be Compliant, as of the date of delivery of Seller’s notice described above, and such five (5) Business Day period shall not be deemed in any way to extend the 15 consecutive Business Day period specified in Section 2.01(ii)(A), and (y) irrespective of the delivery of such a notice by Seller, the Company shall continue to comply with its obligations under this Section 6.12(b) in all respects.
(c) The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Financing, provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or its Subsidiaries. Notwithstanding any other provision set forth herein or in any other agreement between the Company and Purchaser (or its affiliates), the Company agrees that the Purchaser and its affiliates may share customary projections with respect to the Company as part of the consolidated business of Parent and its Subsidiaries, and not on a stand-alone basis, that the Company assisted the Purchaser in preparing in accordance with Section 6.12(b) with the Financing Sources identified in the Debt Commitment Letter, and that Purchaser, its affiliates and such Financing Sources may share such information with potential Financing Sources in connection with any marketing efforts in connection with the Financing, provided that the recipients of such information agree to customary confidentiality agreements. Notwithstanding the requirements of Section 6.12(b), (i) neither the Company nor any of its Affiliates or their respective Representatives shall be required to enter into any letter, certificate, document, agreement or instrument that will be effective prior to the Closing (other than Representation Letters), (ii) nothing herein shall require cooperation contemplated thereby to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) nothing herein shall require the Company (A) to cause its legal counsel to deliver any legal opinions or (B) to deliver any authorization letters or any certificate as to solvency by Seller or the Company or its Subsidiaries, and (iv) nothing herein shall require the Company to provide or deliver (1) subject to Section 6.15, any audited or unaudited financial statements not (x) delivered or provided to Purchaser prior to the date hereof or (y) otherwise constituting Financing Information, or (2) any financial information with respect to a month or fiscal period that has not yet ended or that has ended less than 45 days prior to the date of such request.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to Whether or not the Closing from consummated offerings or other incurrences of debt occurs, Purchaser will promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including notesreasonable attorneys’ fees) incurred by Parent for all the Company or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that its Subsidiaries (vother than with respect to any costs associated with preparing its regular quarterly and annual financial statements) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations cooperation of the Company and its Subsidiaries pursuant contemplated by Section 6.12(b). Purchaser will indemnify and hold harmless the Company, its Affiliates and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing (including any action taken in accordance with this Section 6.12) and any assistance or activities in connection therewith, in each case other than to Section 6.14 the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or breach of this Agreement by any such Person.
(e) Notwithstanding anything herein to the contrary, in no event shall no longer be in effect. Further, Parent shall have the right any failure to substitute commitments obtain any Financing nor any failure to fund any Financing relieve Purchaser of any obligation under or in respect of other financings for all or any portion of this Agreement, including the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available obligation to Parent, is sufficient to pay all amounts required to be paid in connection with timely consummate the transactions contemplated by this Agreement as required hereby, and all conditions precedent to neither the obtaining nor the availability or funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt any Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to constitute a condition regarding Parentto Purchaser’s or any of its Affiliates’ obtaining funds obligation to timely consummate the Merger and the transactions contemplated by this AgreementAgreement as required hereby. Purchaser reaffirms its obligation to consummate the transactions contemplated by this Agreement irrespective and independently of the availability of the Financing, subject to satisfaction or waiver of the conditions set forth in Article VII.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Subject Parent’s, US Corp.’s and Merger Sub’s obligations hereunder are not subject to any conditions regarding Parent’s, US Corp.’s, Merger Sub’s or any other person’s ability to finance, or obtain financing for, the terms Transactions.
(b) From and conditions after the execution of this Agreement, Parent Parent, US Corp. and Merger Sub shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Financing Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, any replacement of all or any portion of any facilities (or commitments thereof) described in, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Letter, if such amendment, supplementmodification, replacement, modification replacement or waiver (Ai) reduces the aggregate amount of the cash proceeds from Financing (including by changing the Debt amount of fees to be paid or original issue discount except by operation of the “flex” provisions in the related fee letter) unless such reduction is replaced with Replacement Financing or cash on hand or (Bii) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision portion of the Debt Commitment Letter Financing in a manner that would or would reasonably be expected to (xA) delay or prevent the Closing or the Closing Date, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yC) adversely affect impact the ability of Parent Parent, US Corp. or Merger Sub, as applicable, to enforce its their rights against other parties to the Debt Commitment Financing Letter or the definitive agreements to be entered into with respect thereto to the Financing, including any right to seek specific performance of the Financing Letter or such definitive agreements. Subject to the limitations set out in the first sentence of this Section 6.12(b), Parent, US Corp. and Merger Sub may (provided1) amend, that Parent may amend supplement, modify, replace or substitute the Debt Commitment Financing Letter as in effect at the date hereof, including to (x) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Financing Letter as of the date of this Agreement, (y) increase the amount of Indebtedness and (z) replace all or a portion of the facility committed under the Financing Letter as in effect as of the date hereof with one or more new facilities under such action would not reasonably Financing Letter or under any new commitment letter or facility or (2) replace all or a portion of the Financing with substitute or replacement debt financing or equity financing (consistent with the equity financing described in Section 4.02(a) of the Parent Disclosure Letter) (any such new commitment or facility described in clause (z) above or Financing described in clause (2) above, a “Replacement Financing”), provided that any amendments, modifications or replacements of any Replacement Financing shall be expected subject to delay or prevent the Closingsame limitations that apply to the Financing Letter as set forth in the first sentence of this Section 6.12(b). Parent From and after the execution of this Agreement, Parent, US Corp. and Merger Sub shall promptly deliver use their respective reasonable best efforts to obtain a corporate credit rating from each of Standard & Poor’s Ratings Services and Xxxxx’x Investor’s Services, Inc.
(c) Subject to the Company trueterms and conditions of this Agreement, complete each of Parent, US Corp. and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, Merger Sub will use its reasonable best efforts (A) to maintain in effect the Debt Commitment Financing Letter pursuant to its terms until the Merger is consummated and to obtain the Financing on the terms and conditions described in the Financing Letter, including using its reasonable best efforts (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bi) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterFinancing Letter (including any applicable “flex” provisions contained in the related fee letter), (Cii) to satisfy all conditions on a timely basis (or obtain to obtaining the waiver of)Financing applicable to each of Parent, US Corp. and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing Merger Sub set forth therein in such definitive agreements that are within its control or control, (iii) to comply in all respects with its covenants and obligations under the Financing Letter and (iv) subject to Section 6.07, to enforce through exercise of all available remedies its influence and, rights under the Financing Letter in the event of a breach or other failure to fund by the Lenders. Parent shall give the Company prompt notice upon satisfaction becoming aware of any of the conditions set forth following: (A) any material breach or default of the Financing Letter by a party to the Financing Letter or definitive document with respect to the Financing of which they become aware; (B) the receipt of any written notice or other written communication from any Financing Source with respect to any breach, default, termination or repudiation by any party to the Financing Letter or any definitive document related to the Financing of any provisions of the Financing Letter or any definitive document related to the Financing and (C) if for any reason Parent, US Corp. or Merger Sub believes in good faith that they will not be able to obtain all or any portion of the Debt Commitment Letter, Financing required to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingTransactions. Parent shall keep the Company informed on a current reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and provide to the Company, upon its written request, copies of the definitive material documents related to the Financing (other than fee letters and any other documentation subject to confidentiality restrictions). Notwithstanding the foregoing, nothing in this Section 6.12(c) shall require Parent to disclose any information that is subject to attorney-client or similar privilege if Parent shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege. Subject to the terms and conditions of this Agreement, in the event that all conditions in the Financing Letter have been satisfied or, upon funding, will be satisfied, Parent, US Corp. and Merger Sub shall use their reasonable best efforts to cause the Lenders to fund on the Closing Date the Financing required to consummate the Merger, the Subsequent Merger and the other Transactions. In the event that Parent, US Corp. or Merger Sub becomes aware of any event or circumstance that makes procurement of any portion of the Financing unlikely to occur in the manner or from the sources contemplated in the Financing Letter, Parent, US Corp. or Merger Sub shall, in addition to promptly notifying the Company in writing of such event or circumstance, use their respective reasonable best efforts to, as promptly as practicable, arrange any such portion (other than amounts that are replaced by Parent’s cash on hand and marketable securities) from alternative sources (such portion from alternate sources, the “Alternate Financing”) in an amount sufficient to consummate the transactions contemplated hereby; provided, however, that Parent, US Corp. and Merger Sub shall not be required to agree to terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent, US Corp. and Merger Sub than those contained in the Financing Letter (and the “flex” provisions contained in the related fee letter). For the avoidance of doubt, the syndication of any part of the Financing in accordance with the terms of the Financing Letter shall not be deemed to violate Parent’s obligations under this Agreement.
(d) Prior to the Closing, the Company shall provide, and shall cause the Company Subsidiaries to provide, and shall use its reasonable best efforts to cause its and their Representatives, officers and employees to provide, on a timely basis, all reasonable cooperation requested by Parent in connection with the arrangement of the Financing to the extent that such cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries, including (i) using reasonable best efforts to facilitate the provision of guarantees and pledge of collateral (effective as of the actual occurrence of Closing), (ii) providing customary financial and other pertinent information regarding the Company and the Company Subsidiaries and cooperating in the preparation of pro forma financial information for the Transactions (including information to be used in the preparation of an information package, offering memorandum, prospectus, prospectus supplement or similar document regarding the business, assets, operations, financial projections and prospects of Parent and the Company customary for such financing or reasonably necessary for the completion of the Financing), including the financial information required to be delivered pursuant to the Financing Letter and such other information as may be reasonably requested in writing by Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing, and(iii) reasonably cooperating with the marketing efforts for the Financing (it being acknowledged that the Company hereby consents to the reasonable use of the Company’s and the Company Subsidiaries’ logos provided that such logos are used in a manner that is not reasonably likely to harm or disparage the Company or their marks and on such other customary terms and conditions as the Company shall reasonably impose) and using commercially reasonable efforts to provide an introduction and access to the Company’s existing lenders in connection with any syndication efforts, (iv) providing copies of any recent appraisals, environmental reports, evidence of title (including copies of deeds, lease documentation, title insurance policies and/or commitments for title insurance, title opinions, surveys, and similar information), and similar information with respect to the properties and assets of the Company and the Company Subsidiaries that are in the Company’s possession and that are reasonably requested by Parent, (v) providing other reasonably requested customary certificates, opinions or documents, including a customary certificate of the principal financial officer of the Surviving Company (in his capacity as such) with respect to solvency matters, (vi) requesting such customary legal opinions and customary accountant comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing) as may be reasonably requested by Parent, (vii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or underwriters, as applicable, for the Financing and their counsel and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies as are customary and reasonably requested by Parent, (viii) providing reasonable and customary assistance to Parent and its financing sources or underwriters, as applicable, in (A) the preparation of all credit agreements (including review of schedules for completeness), currency or interest hedging agreements or other agreements, offering documents, an offering memorandum, prospectus or prospectus supplement and other marketing and rating agency materials for the Financing or (B) the amendment or termination of any of the Company’s or the Company Subsidiaries’ existing credit agreements, currency or interest hedging agreements, or other agreements and the release of all collateral and termination of all security interests thereunder (including by negotiating a payoff letter in customary form satisfactory to Parent with respect to any and all obligations of the Company and the Company Subsidiaries under their existing credit facilities, a copy of which shall be delivered to Parent no less than five Business Days prior to the Closing Date), in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Financing provided that no obligation of the Company or any of the Company Subsidiaries under any such agreements or amendments shall be effective until the actual occurrence of the Effective Time, in each case it being understood and agreed that information and documents provided by the Company and the Company Subsidiaries may be delivered to the Financing Sources and their Representatives, (ix) using reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance, including in connection with due diligence and preparation of pro forma financial information for the Transactions, (x) using reasonable best efforts to permit any cash and marketable securities of the Company and the Company Subsidiaries to be made available to Parent, US Corp. and Merger Sub at the Closing, (xi) cooperating reasonably with Parent’s financing sources’ or underwriters’, as applicable, due diligence, to the extent customary and reasonable and to the extent not unreasonably interfering with the business of the Company, (xii) furnishing Parent and the financing sources promptly following (and in any event no later than ten days prior to the Closing Date) with all documentation and other information required by any Governmental Entity with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, (xiii) providing customary authorization letters to the financing sources authorizing the distribution of information to prospective lenders and other Financing Sources, and (xiv) to the extent reasonably requested by Parent, adopting customary corporate resolutions by the Company and the Company Subsidiaries to permit the completion of the Financing. All non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 6.12 shall be (1) kept confidential in accordance with the Confidentiality Agreement, except that Parent and US Corp. shall be permitted to disclose such information to potential financing sources and to rating agencies during the syndication and marketing of the Financing subject to customary confidentiality undertakings by such potential financing sources and (2) supplied only to financial institutions or rating agencies or any of their respective representatives for use in connection with the Financing. Parent shall (A) promptly, upon request by the Company, provide to reimburse the Company copies for all reasonable and documented out-of-pocket costs (including reasonable and documented attorneys’ fees) incurred by the Company or any of the Company Subsidiaries in connection with the cooperation of the Company and the Company Subsidiaries contemplated by this Section 6.12 and (B) indemnify and hold harmless the Company, the Company Subsidiaries and their respective Representatives from and against any and all executed Debt reasonable and documented out-of-pocket losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with Third Party claims arising out of the arrangement of the Financing Agreementsand any information used in connection therewith, except with respect to any information provided in writing by the Company or any of the Company Subsidiaries or contained in the Company SEC Documents.
(ce) Without limiting For purposes of this Agreement, the foregoing, Parent agrees term “Financing” shall also be deemed to notify the Company promptly, and in include any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Alternate Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifand, in the case of this clause (BSection 6.12(d), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Replacement Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt term “Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall also be deemed to include any fee amendment, replacement, supplement or other modification thereto or waiver thereof permitted pursuant to this Section 6.12 and any commitment letter relating (or similar agreement) with respect to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectsuch Alternate Financing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (SXC Health Solutions Corp.), Merger Agreement (Catalyst Health Solutions, Inc.)
Financing. (a) Subject to the terms Each of Purchaser and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange arrange, consummate and obtain the Debt proceeds of the Financing as promptly as reasonably practicable on the terms and conditions described in the Debt Equity Commitment Letter, including: (i) maintaining in effect the Equity Commitment Letter; (ii) satisfying on a timely basis all conditions applicable to Parent and Purchaser set forth in the Equity Commitment Letter pursuant that are within their control; (iii) consummating the Financing at or prior to the terms thereof Acceptance Time (including and in any “market flex” provisionsevent prior to the Outside Date), subject to the satisfaction, or waiver by Parent, of all conditions to the Offer and the Merger; and (iv) including using its reasonable best efforts to seek to enforce its fully enforcing each Sponsor’s obligations (and the rights of Parent and Purchaser) under the Debt Equity Commitment Letter.
(b) Neither Purchaser nor Parent shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision or remedy under the Equity Commitment Letter without the prior written consent of the Company (which may be granted or withheld in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consentsole discretion), permit any amendmentto the extent such amendments, supplement, replacement modifications or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver waivers would (Ai) reduces reduce the aggregate amount of the aggregate cash proceeds available from the Debt Financing Financing, or (Bii) imposes impose new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, precedent or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter conditions precedent or other terms therein in a manner adverse to Purchaser, Parent or the Company, including any expansion, waiver, amendment or modification that would be reasonably be expected likely to (xA) prevent or delay or prevent impair the funding in full ability of Purchaser and Parent to consummate the Offer, the Merger and the other transactions contemplated hereby, (B) adversely impact the ability of the Debt Company, Purchaser or Parent to enforce its rights or remedies against the other parties to the Equity Commitment Letter or (C) make the timely funding of the Financing (or satisfaction of the conditions precedent to obtaining the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent Financing any less likely to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)occur. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two one (21) Business Days, if at any time prior to Day) notify the Closing Date Company of (i) any amendment, waiver or modification, or agreement to do any of the Debt foregoing, of any term of the Equity Commitment Letter is terminated for any reasonLetter, (ii) Parent becomes aware of any breach the expiration or default termination (Aor attempted or purported termination, whether or not valid) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing Equity Commitment Letter, or (iii) a counterparty indicates in writing or orally that it will not any refusal by the Sponsor to provide, any stated intent by the Sponsor to refuse to provide, or it refuses any expression of concern or reservation by the Sponsor regarding its obligation and/or ability to provide, all or any portion of the Debt Financing full financing contemplated by the Debt Equity Commitment Letter on the terms set forth thereinLetter. Neither Purchaser nor Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written release or consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences termination of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company lenders and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have other Persons under the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Equity Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Procera Networks, Inc.), Merger Agreement (Procera Networks, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take(i) maintain in full force and effect the Equity Commitment Letter until the Transactions are consummated, (ii) satisfy, or cause to be takensatisfied, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt the closing of and funding under the full amount of the Debt Financing at the Closing set forth therein Equity Commitment Letter applicable to Parent and/or Merger Sub that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Lettercontrol, and (Eiii) to consummate the Debt Equity Financing at or prior to the Effective Time. In Time in accordance with the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding terms of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Equity Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsLetter.
(cb) Without limiting Notwithstanding anything to the foregoingcontrary in this Agreement, Parent agrees from time to notify the Company promptly, time and in any event within two (2) Business Days, if at any time prior to the Closing Date Closing, Parent shall be entitled to adjust the number of Rollover Shares and/or the amount of the Equity Financing and, in connection therewith, amend the applicable Support Agreement and/or the Equity Commitment Letters, or enter into additional Support Agreements and/or Equity Commitment Letters, in each case solely to give effect to such adjustments; provided that (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party shall deliver a prior written notice to the Debt Commitment Letter or Company and any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifsuch notice shall be accompanied by, in the case of this clause any adjustment to the number of Rollover Shares, a true and complete copy of the applicable draft amended or additional Support Agreements, and in the case of any adjustment to the amount of the Equity Financing, a true and complete copy of the applicable draft amended or additional Equity Commitment Letters, (Bii) any amended or additional Equity Commitment Letters so entered into shall not impose new or additional conditions precedent or adversely change the conditions precedent set forth therein and shall be on other terms and conditions not materially less favorable (from the standpoint of the Company), such breach or default would reasonably be expected in the aggregate, to affect the availability of the Debt Financing or Parent and Merger Sub than those contained in comparable Equity Commitment Letters then existing, (iii) a counterparty indicates in writing after giving effect to such adjustment, and taking into consideration any such amended or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt additional Support Agreement and Equity Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofLetters, the Debt Equity Commitment Letter, (w) the Letters shall provide for an aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, proceeds that is sufficient for Parent and the Surviving Entity to pay all (x) the Merger Consideration, and (y) any other amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations consummation of the Company Transactions on the terms and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions conditions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecthereby, and (iiiiv) any reference in this Agreement such adjustment would not otherwise reasonably be expected to “fee letter” shall be deemed to include any fee letter relating to prevent, delay or impair the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, ability of Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds Merger Sub to consummate the Merger and the transactions contemplated by this AgreementTransactions.
Appears in 2 contracts
Samples: Merger Agreement (Ma Baoli), Merger Agreement (BlueCity Holdings LTD)
Financing. (a) Subject to the terms satisfaction of the condition set forth in Sections 4.01 and conditions of this Agreement4.02, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain provide Sub with the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof equity financing contemplated by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacementLetters.
(b) Parent and Sub shall, and shall cause its Affiliates their respective officers, directors, employees, affiliates, financial advisors and Representatives other representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, arrange as promptly as practicable and cause (subject only to the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail simultaneous consummation of the status transactions contemplated hereby) to complete the financing contemplated by (i) the Credit Facility (as defined in the Commitment Letters) on the terms set forth in the Commitment Letters and, to the extent not set forth in the Commitment Letters, on such terms as are reasonably satisfactory to Parent and (ii) the issuance and sale of its $150 million principal amount of senior subordinated notes on the terms set forth in the Commitment Letters and, to the extent not set forth in the Commitment Letters, on such terms as are reasonably satisfactory to Parent; provided, that if the issuance and sale of such senior subordinated notes is not completed by the later of (A) the date of the Stockholders' Meeting and (B) 90 days after the date hereof, then thereafter Parent and Sub shall be obligated to use their reasonable best efforts to arrange consummate as promptly as practicable prior to the Debt FinancingOutside Date, the financing pursuant to the Bridge Loan Facility (as defined in the Commitment Letters) on the terms set forth in the Commitment Letters and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreementsextent not set forth in the Commitment Letters, on terms reasonably satisfactory to Parent.
(c) Without limiting Except to the foregoingextent the Company shall otherwise consent in writing, Parent agrees to notify the Company promptly, and Sub will not modify or amend in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on material respect the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available cancel or waive any material right under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectLetters.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Cpi Corp), Merger Agreement (Essman Alyn V)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, necessary or advisable or proper to arrange and obtain consummate on the Closing Date the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant subject to the terms thereof conditions (including any the “market flex” provisions) set forth in the Debt Commitment Letter, including using its commercially reasonable best efforts to seek to enforce its rights under to:
(i) maintain in full force and effect the Debt Commitment Letter in accordance with the event of a breach terms and subject to the conditions thereof by until the financing provider(s) thereunder. Parent shall not, Merger is consummated or this Agreement is terminated in accordance with its terms; and without the Company’s prior written consentconsent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed) not permit any amendment, supplement, replacement amendment or modification to be made to, or not consent to any waiver of any provision or remedy under, and not replace, the Debt Commitment Letter Letter, in any case if such amendment, supplementmodification, replacement, modification waiver or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) replacement imposes new or additional conditions to the initial funding or otherwise expands materially amends or modifies any of the conditions to the receipt funding of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would could reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (Closing; provided, that that, Parent may amend amend, modify or supplement the Debt Commitment Letter to (x) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who have not executed the Debt Commitment Letter as such action would not reasonably be expected to delay or prevent of the Closing). date hereof, (y) effectuate any “market flex” provisions contained therein; provided further, however, that, Parent shall promptly deliver disclose to the Company trueits intention to enter into any such amendment, complete modification, waiver or replacement of the Debt Commitment Letter prior to the effectiveness of such amendment, modification, waiver or replacement and correct shall promptly furnish to the Company copies of executed versions of any such amendment, modification modification, waiver or replacement.;
(bii) Parent shallsatisfy on a timely basis all conditions to the Debt Financing that are within its control;
(iii) negotiate, execute and shall cause its Affiliates deliver Debt Financing Documents that reflect and Representatives to, use its reasonable best efforts (A) to maintain are consistent with the terms contained in effect the Debt Commitment Letter (provided that including any “market flex” provisions related thereto) as the Debt Commitment Letter same may be amended, supplemented, replaced, modified or waived supplemented as provided in permitted by this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), Agreement; and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter Section 6.01 and Section 6.02 have been satisfied or waived or, upon funding of the Debt Financing will be, would be satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide full amount of the Debt Financing to comply with their obligations under be funded as contemplated by the Debt Commitment Letter and definitive financing at the Closing.
(b) Parent shall provide to the Company, upon request, copies of all executed agreements and other documents relating to fund on or before the Effective Time the Debt Financing. Parent shall Financing and keep the Company informed on a reasonably current basis and in reasonable detail of all material developments with respect to the status of its efforts to arrange the Debt Financing.
(c) Without the prior written consent of the Company (not to be unreasonably withheld, andconditioned or delayed), neither Parent nor any of its affiliates shall take any action that could reasonably be expected to materially delay or prevent the consummation of the Debt Financing.
(d) If any Financing Failure Event occurs, Parent shall (unless Parent determines that the affected portion of the Debt Financing is not reasonably required to consummate the Merger) promptly following request notify the Company thereof and use its commercially reasonable efforts to obtain, as promptly as practicable, on terms reasonably as favorable to Parent (as reasonably determined by Parent) as the Companyterms of the Debt Commitment Letter, provide alternative debt financing (“Debt Replacement Financing”) in an amount that would, together with other funds readily available to Parent, be sufficient to pay the aggregate Merger Consideration on the Closing Date. Parent shall deliver to the Company copies of all executed contracts or other arrangements pursuant to which any alternative source shall have committed to provide any portion of the Debt Replacement Financing Agreements(provided that any fee letters in connection therewith may be redacted with respect to interest rates, fee amounts, pricing caps and other similar economic terms (including any “market flex” provisions). Any Debt Replacement Financing shall be subject to the same obligations as set forth in this Section 5.19 with respect to the Debt Financing.
(ce) Without limiting the foregoing, Parent agrees to notify All non-public or otherwise confidential information regarding the Company promptlyand its Subsidiaries obtained by Parent or its representatives shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to potential investors and lenders in connection with the Debt Financing subject to such investors and lenders entering into customary confidentiality undertakings with respect to such information.
(f) Notwithstanding anything contained in this Section 5.19 or anything else in this Agreement to the contrary, in no event shall the commercially reasonable efforts of Parent be deemed or construed to require Parent to, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonParent shall not be required to, (iix) Parent becomes aware incur or pay any fees to obtain a waiver or amendment of any breach or default (A) by any Financing Source party to term of the Debt Commitment Letter or any Debt Financing Agreement or Documents in excess (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case aggregate) of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing those contemplated by the Debt Commitment Letter on as of the date hereof, (y) agree to conditionality or economic terms set forth therein. of the Debt Financing that are less favorable to Parent shall promptly provide any information reasonably requested than those contemplated by the Company relating to Debt Commitment Letter (including any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent market flex provisions therein) as of the Companydate hereof, take any action or enter into any transaction that would reasonably be expected (z) obtain or seek equity financing to materially impair, delay supplement or prevent consummation of replace all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (SPAR Group, Inc.), Merger Agreement (SPAR Group, Inc.)
Financing. (a) 7.22.1. Subject to the terms and conditions of this Agreement, Parent Purchaser shall use reasonable best efforts to obtain the Financing on the terms and conditions set forth in the Financing Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Financing less likely to occur), and use its reasonable best efforts to (a) maintain in effect the Financing Letter and negotiate and execute definitive agreements with respect to the Financing Letter on the terms and conditions set forth in the Financing Letter (or on terms which would not be reasonably expected to delay or prevent the Closing or make the funding of the Financing less likely to occur), (b) satisfy on a timely basis all conditions applicable to Purchaser set forth in such definitive agreements that are within its reasonable control and not take or fail to take any action that would be expected to prevent, impede or delay the availability of the Financing, and (c) consummate the Financing contemplated by the Financing Letter at or prior to the Closing. In the event that all conditions in the Financing Letter have been satisfied or upon funding will be satisfied, Purchaser shall use its reasonable best efforts to take, or cause the lenders providing the Financing to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing fund on the terms Closing Date the Financing required to consummate the transactions contemplated by this Agreement and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to Purchaser shall otherwise enforce its rights under the Debt Commitment Financing Letter, including by seeking specific performance of the parties thereunder.
7.22.2. Purchaser shall not amend, alter, or waive, or agree to amend, alter or waive (in any case, whether by action or inaction), any term of the Financing Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver consent of any provision under, the Debt Commitment Letter Seller if such amendment, supplement, replacement, modification alteration or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or would reasonably be expected to delay or prevent the Closing or make the funding of the Financing less likely to occur; provided, however, that Purchaser may (Ba) imposes new replace and/or amend the Financing Letter so long as (i) the terms would not be reasonably expected to delay or additional conditions prevent the Closing or make the funding of the Financing less likely to the initial funding or otherwise expands any of occur and (ii) the conditions to the receipt Financing set forth in the Financing Letter as of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Execution Date would not be expanded in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (Closing or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect a Capital Markets Transaction in lieu of or in addition to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on Financing Letter; and in any such event, Purchaser shall disclose to the Seller its intention to obtain such alternative financing or to engage in such Capital Markets Transaction and shall keep the Seller informed of the terms set forth thereinthereof. Parent The term “Financing or Capital Markets Transaction” shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
mean (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wA) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Financing Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is extent not so superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter any alternative financing to the extent then in effect, and (iiiB) any reference Capital Markets Transaction. Purchaser shall promptly (and in this Agreement to “fee letter” shall be deemed to include any fee letter relating to event within two Business Days) notify the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at Seller of the time in question and each New Debt Commitment Letter to expiration or termination of the extent then in effectFinancing Letter.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Laboratory Corp of America Holdings), Asset Purchase Agreement (Genzyme Corp)
Financing. (a) Subject to Parent, Amalgamation Sub and the terms and conditions of this Agreement, Parent Guarantors shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof not (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit consent of the Company) consent or agree to any amendment, supplementreplacement, replacement supplement or modification to be made to, or any waiver of any provision under, the Debt Equity Commitment Letter if such amendment, replacement, supplement, replacement, modification or waiver (Ai) reduces decreases the aggregate amount of the cash proceeds from Equity Financing to an amount that would be less than an amount that would be required to consummate the Debt Financing Amalgamation and make the other payments required by Parent, Amalgamation Sub and the Amalgamated Company hereunder or otherwise contemplated in connection herewith, (Bii) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Equity Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that (iii) would reasonably be expected to (x) prevent, impede or delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateTransactions, or (yiv) materially and adversely affect impacts the ability of Parent or Amalgamation Sub to enforce its rights against the other parties to the Debt Equity Commitment Letter or the definitive agreements with respect thereto (providedLetter. Upon request, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver furnish to the Company true, complete and correct copies a copy of any such replacement, amendment, modification modification, waiver or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) consent of or relating to maintain in effect the Debt Equity Commitment Letter (provided that promptly upon execution thereof. Upon any replacement, amendment, supplement or modification of the Debt Equity Commitment Letter may be amended, supplemented, replaced, modified or waived as provided made in compliance with this Section 6.137.07(a) (excluding any amendment for the sole purpose of joining or adding additional commitment parties thereto), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on provide a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide copy thereof to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting and the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (term “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Equity Commitment Letter” shall be deemed to include mean the Debt Equity Commitment Letter which as so amended, replaced, supplemented or modified. Notwithstanding the foregoing, compliance by Parent with this Section 7.07 shall not relieve Parent or Amalgamation Sub of its obligation to consummate the Transactions whether or not the Equity Financing is not superseded by a New Debt Commitment Letter at the time in question available and each New Debt Commitment Letter to the extent then in effect, of Parent and (iii) any reference in Amalgamation Sub acknowledges that this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder Amalgamation and the other Transactions are not subject to a condition regarding contingent on Parent’s or Amalgamation Sub’s ability to obtain the financing (or any of its Affiliates’ obtaining funds alternative financing) or any specific term with respect to consummate the Merger and the transactions contemplated by this Agreementsuch financing.
Appears in 2 contracts
Samples: Amalgamation Agreement, Amalgamation Agreement (Global Sources LTD /Bermuda)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate, on or proper prior to arrange and obtain the Closing Date, the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein (subject to any “flex” provisions applicable thereto), including by (i) maintaining in effect the Debt Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions described contained therein (including, as necessary, the “flex” provisions contained in any related fee letter) and (iii) satisfying on a timely basis, or obtaining waivers of, the conditions in the Debt Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) including using Definitive Agreements. Parent shall comply with its reasonable best efforts to seek to enforce its rights obligations under the Debt Commitment Letter and Definitive Agreements in the event of a breach thereof by the financing provider(s) thereundertimely and diligent manner. Parent shall notkeep the Company reasonably informed of material developments in respect of Parent’s efforts to arrange the Debt Financing. Prior to the Closing, without the Company’s prior written consentconsent of the Company, permit Parent shall not (A) agree to, or permit, any amendment, supplement, replacement modification or modification to be made tosupplement of, or any waiver of any provision under, the Debt Commitment Letter if or any Definitive Agreement to the extent such amendment, supplementmodification, replacement, modification supplement or waiver would (Ai) reduces reduce the aggregate amount to be funded under the Debt Financing (including by changing the amount of the cash proceeds from fees to be paid or original issue discount of the Debt Financing or similar fees unless the aggregate amount to be funded under the Debt Financing is increased by an equivalent amount) unless Parent has sufficient cash on hand available), (Bii) imposes adds new (or additional adversely modifies any existing) any conditions to the initial funding consummation of all or otherwise expands any of the conditions to the receipt portion of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (yiii) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof; or (providediv) could otherwise reasonably be expected to prevent, that impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or (B) terminate any Debt Commitment Letter or any Definitive Agreement. Parent shall promptly deliver to the Company copies of any such amendment, modification or waiver of any Debt Commitment Letter. Notwithstanding the foregoing, (x) Parent may amend the Debt Commitment Letter solely to add or replace investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date hereof and, in connection therewith, amend the allocation of economics with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not impact the aggregate amount of the Debt Financing to be funded at the Closing and (y) in the event that Parent is required pursuant to this Section 7.11 to provide any information that is subject to attorney-client or similar privilege, Parent may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such action information and thereafter Parent shall use its reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to delay waive the applicable privilege or prevent protection.
(b) In the Closing)event any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions applicable thereto) contemplated in the Debt Commitment Letter and such portion is necessary to fund the transactions contemplated by this Agreement, Parent shall promptly notify the Company and shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange to obtain alternative debt financing from alternative sources for such portion in an amount equal to the amount of the Debt Financing. If obtained, Parent shall promptly deliver to the Company true, true and complete and correct copies of a new debt financing commitment pursuant to which any such amendment, modification or replacement.
(b) Parent shall, and alternative source shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing committed to provide the Debt Financing to comply Parent with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference References in this Agreement to (i) the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as amended, modified pursuant to clause (ii) belowor replaced, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectsuch documents as amended, modified or replaced and (iii) any reference in this Agreement to “fee letterDebt Financing Sources” shall be deemed include the providers of debt financing under such documents as amended, modified or replaced (in the case of each of clauses (i), (ii) and (iii), including replacement with alternative financing and alternative debt financing commitments pursuant to include any this Section 7.11 from and after such amendment, modification or replacement); provided, that fee letter relating to letters or side letters which do not contain “flex” or other provisions which affect the terms or amount, availability or conditions of the Debt Commitment Letter that is Financing shall not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds be required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)be provided.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Virtu Financial, Inc.), Merger Agreement (Investment Technology Group, Inc.)
Financing. (a) Subject Each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy pursuant to, the Financing Letters if such amendment, modification or waiver would or would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing unless the Equity Financing is increased by an equivalent amount; (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to delay or prevent in any material respect the ability of Parent to consummate the Merger; or (iii) adversely impact the ability of Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Financing Letters. Notwithstanding the foregoing, assignments consummated pursuant to the terms of the Financing Letters are permitted.
(b) Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions applicable thereto) described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Financing Letters, including using its commercially reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter Financing Letters in accordance with the terms and subject to the conditions thereof; (provided that the Debt Commitment Letter may be amendedii) negotiate, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate execute and enter into deliver definitive agreements with respect to the Debt Commitment Letter (Financing contemplated by the “Debt Financing Agreements”) Letters on the terms and conditions that are not materially less favorable to Parent than those contained in (including the Debt Commitment Letter, flex provisions) contemplated by the Financing Letters; (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein funding that are within its control or subject applicable to its influence and, Parent and Merger Sub in the Financing Letters and/or definitive agreements for the Financings; (iv) upon satisfaction of the conditions set forth in the Debt Commitment LetterFinancing Letters and this Agreement, to including the expiration of the waiting period, consummate the Debt Financing at or prior to the Closing, ; and (Dv) to comply in all material respects with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior pursuant to the Effective Time. In the event Financing Letters; provided, however, that all conditions precedent expressly set forth in the Debt Commitment Letter have been orunder no circumstances shall Parent, upon funding Merger Sub or any other Parent Related Party be required to commence or sustain a Legal Proceeding against any of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Sources in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings Transactions or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectCommitment.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Evans Hugh D), Merger Agreement (Anaren Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) and Fee Letter, including using its reasonable best efforts to seek (i) maintain in effect the Commitment Letter and Fee Letter in accordance with their terms, (ii) negotiate definitive agreements with respect to enforce its rights under the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter) and (iii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Commitment Letter, Fee Letter and the Definitive Agreements and comply with its obligations thereunder. In the event that all conditions contained in the Commitment Letter in and Fee Letter have been satisfied and Parent is required to consummate the event Closing pursuant to Section 2.4, Parent shall use reasonable best efforts to cause each Lender to fund its respective committed portion of a breach thereof the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the financing provider(s) thereunderClosing Date. Parent shall not, without the Company’s prior written consentconsent of the Company (which shall not be unreasonably withheld, conditioned or delayed), permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not be deemed a voluntary replacement for purposes of the Debt sentence), the Commitment Letter or Fee Letter if such amendment, supplementmodification, replacement, modification or waiver or voluntary replacement (Aw) reduces the aggregate amount of the cash proceeds from the Debt Financing adds new (or (Badversely modifies any existing) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of as compared to those in the conditions to the Debt Financing) Commitment Letter and Fee Letter as in effect on the Closing Datedate of this Agreement, or (yx) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter, Fee Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date hereof or in the Definitive Agreements, (y) reduces the aggregate amount of the Debt Financing, or (z) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement; provided, that Parent may amend for the Debt avoidance of doubt no consent from the Company shall be required for: (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to add or replace adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Commitment Letter or Definitive Agreements so long as such action would not reasonably be expected to delay or prevent prohibited by the Closingforegoing clauses (w)-(z). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) In the event that any portion of the Debt Financing becomes unavailable, regardless of the reason therefor (other than a breach by the Company of this Agreement which prevents or renders impracticable the consummation of the Debt Financing) Parent shall, and shall cause its Affiliates and Representatives to, will (1) use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter obtain alternative debt financing (the “Alternative Debt Financing”) (in an amount sufficient, when taken together with available cash on hand, and any then-available Debt Financing Agreements”pursuant to any then-existing Commitment Letter, to consummate the transactions contemplated by this Agreement and to pay related fees and expenses earned, due and payable as of the Closing Date) on the terms and conditions that are not materially less favorable in the aggregate to Parent than those contained in the Debt Commitment Letter, Letter and the Fee Letter that the alternative financing would replace (Ctaking into account any flex provisions) from the same or other sources and which do not include any incremental conditionality to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein such alternative debt financing that are within its control more onerous to Parent or subject to its influence and, upon satisfaction of the Company (in the aggregate) than the conditions set forth in the Debt Commitment Letter, to consummate Letter in effect as of the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, date of this Agreement and (E2) to consummate promptly notify the Debt Financing at or prior to Company of such unavailability and the Effective Timereason therefor. In furtherance of and not in limitation of the foregoing, in the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing structured as high yield financing is unavailable, regardless of the reason therefor, (B) all closing conditions contained in Article VII and Annex I shall be satisfied or waived (other than those conditions that by their nature are to be satisfied or waived at the Closing, provided that such conditions are capable of being satisfied as of such day assuming the Closing was to occur on such day) and (C) the bridge facilities contemplated by the Debt Commitment Letter (or alternative bridge facilities obtained in accordance with this Section 6.9) are available on the terms set forth therein. and conditions described in the Commitment Letter (or replacements thereof), then Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) cause the proceeds of such debt offerings or other incurrences have been received by Parent bridge financing to be used in cash, (y) Parent promptly notifies the Company lieu of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations affected portion of the Company and its Subsidiaries high yield financing to consummate the Closing when Parent is required to do so pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion 2.4.
(c) For purposes of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash foregoing Sections 6.9(a) and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”b). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the term “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt any commitment letter (or similar agreement) with respect to any alternative debt financing arranged in compliance herewith (and any Commitment Letter which is not superseded by a New Debt Commitment Letter Letters remaining in effect at the time in question and each New Debt Commitment Letter to question), (ii) the extent then in effect, and (iii) any reference in this Agreement to term “fee letterFee Letter” shall be deemed to include any fee letter relating (or similar agreement) with respect to any alternative debt financing arranged in compliance with this Section 6.9, and (iii) the term “Lenders” shall be deemed to include any lenders providing the alternative debt financing arranged in compliance herewith. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of its efforts to consummate the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Financing. Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with prompt oral and written notice of any breach or default by any party to any Commitment Letters or the Company Credit AgreementDefinitive Agreements of which Parent gains knowledge and the receipt of any written notice or other written communication from any Lender, subject guarantor, or other financing source with respect to compliance any breach or default or, termination or repudiation by any party to any Commitment Letters or the Definitive Agreements or any provision thereof. For the avoidance of doubt, Parent shall, directly or indirectly, make all proceeds of the Debt Financing received by Parent available to Acquisition Sub as are required for Acquisition Sub to perform its obligations hereunder (including with Section 6.14(a)(iiirespect to the consummation of the Offer and the payment for shares tendered thereby).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Harland Clarke Holdings Corp), Merger Agreement (Valassis Communications Inc)
Financing. (a) Subject Moon shall not, without the prior written consent of Comet: (i) permit any amendment or modification to, or any waiver of any provision or remedy under, the Financing Commitments if such amendment, modification, waiver or remedy (A) adds any new (or modifies adversely to Moon or Comet any existing) conditions to the terms consummation of all or any portion of the Financings, (B) reduces the aggregate amount of the Financings such that the aggregate funds that would be available to Moon on the Closing Date would not be sufficient to pay all amounts contemplated by this Agreement to be paid by it (including to refinance the Existing Debt) and conditions to perform its obligations hereunder, (C) limits or otherwise adversely affects the ability of Moon to enforce its rights against the other parties to the Financing Commitments or the Definitive Agreements or (D) would otherwise reasonably be expected to prevent, impede or delay the consummation of the Combination and the other transactions contemplated by this Agreement; or (ii) take any action to terminate the Financing Commitments. Moon shall promptly deliver to Comet copies of any amendment, modification or waiver to the Financing Commitments. Notwithstanding anything in this Agreement to the contrary, subject to the limitations set forth in this Section 7.20(a), Moon may amend, replace, supplement or otherwise modify the Financing Commitment Letters to add or replace Lenders, lead arrangers, agents or similar entities and the commitments in respect of the Financings that have not executed the Financing Commitment Letter as of the date of this Agreement, Parent Agreement and replace the debt commitments of the Lenders under the Financing Commitment Letter as of the date of this Agreement with debt commitments of such new entities.
(b) Moon shall use its reasonable best efforts to take, or cause to be taken, all actions and necessary to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing proceeds of the Financings on the terms and conditions described in the Debt Commitment Letter pursuant Financing Commitments or terms more favorable to the terms thereof (Moon, including any “market flex” provisions) including by using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Financing Commitments, (Bii) to negotiate negotiate, execute and enter into deliver definitive agreements with respect to the Debt Commitment Letter Financings (the “Debt Financing Definitive Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, Financing Commitments and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate Financing Commitments and the Debt Financing at or prior to the Closing, (D) to Definitive Agreements and comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timethereunder. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter Financing Commitments or the Definitive Agreements have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub Moon shall use their reasonable best efforts to enforce their its rights under, thereunder and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing Lenders thereunder to comply with their respective obligations under thereunder to fund the Debt Commitment Letter and definitive financing agreements Financings to the extent required to consummate the transactions contemplated by this Agreement and to fund pay related fees and expenses on or before the Effective Time the Debt Financing. Parent Closing Date.
(c) Moon shall keep the Company Comet informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by Financings. In the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by Financings becomes unavailable (other than due to the Debt Commitment Letter on failure of any of the terms conditions set forth therein. Parent shall promptly provide any information reasonably requested by in Section 8.1 or Section 8.2 hereof), Moon will use reasonable best efforts to obtain alternative debt financing (in an amount sufficient, when taken together with the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any available portion of the Debt Financing.
(d) Parent shall have the right Financings, to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all to pay related fees and expenses) from the same or other sources and which do not include any conditions precedent to funding the consummation of such alternative debt financing are, in respect of certainty of funding, equivalent to (or that are more favorable to the Company than) onerous than the conditions precedent set forth in the Debt Financing Commitment Letter, to supplement or replace . For the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies purposes of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available underthis Agreement, the Debt term “Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt any commitment letter (or similar agreement) with respect to any alternative financing arranged in compliance herewith (and any Financing Commitment Letter which is not superseded by a New Debt Commitment Letter remaining in effect at the time in question question). Moon shall provide Comet with prompt oral and each New Debt Commitment Letter written notice of any breach or default by any party to the extent then in effectFinancing Commitments or any Definitive Agreement and the receipt of any written notice or other written communication from any Lender or other financing source with respect to any breach, and (iii) default, termination or repudiation by any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating party to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Financing Commitments or any Definitive Agreement of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementany provision thereof.
Appears in 2 contracts
Samples: Business Combination Agreement (Chicago Bridge & Iron Co N V), Business Combination Agreement (McDermott International Inc)
Financing. (a) Subject to The Buyer shall, at the terms and conditions of this AgreementBuyer’s expense, Parent shall use its commercially reasonable best efforts to take(i) fully satisfy in all material respects, or cause to be takenon a timely basis, all actions terms, conditions, representations and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described warranties set forth in the Debt Commitment Letter pursuant to the terms thereof Letters and (including any “market flex” provisionsii) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderLetters. Parent The Buyer shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification use commercially reasonable efforts to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Financings contemplated by the Commitment Letter (the “Debt Financing Agreements”) Letters on the terms and conditions that are not materially no less favorable to Parent the Buyer than those contained the Commitment Letters as soon as reasonably practicable but in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing any event at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction Closing. The Buyer will furnish correct and complete copies of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior such executed definitive agreements to the ClosingCompany promptly upon request by the Company. At the Company’s request, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company reasonably informed on a current basis and in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Debt Financing, and, promptly following request Financings contemplated by the Company, provide to Commitment Letters and shall give the Company copies prompt notice of all executed Debt Financing Agreements.
(c) any material adverse change with respect to such Financings. Without limiting the foregoing, Parent the Buyer agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt any Commitment Letter is shall expire or be terminated for any reason, reason or (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt any Commitment Letter notifies the Buyer that such source no longer intends to either provide or any Debt Financing Agreement or (B) any other party underwrite financing to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter Buyer on the material terms set forth therein. Parent shall promptly provide any information reasonably requested by Other than in connection with this Agreement, the Company relating to any circumstances referred to in this Section 6.13(c). Parent Buyer shall not, nor and shall it permit any of its Affiliates cause Buyer Parent and such entity’s direct and indirect subsidiaries not to, without the prior written consent of the Company, take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, disposition (including the disposition of any capital stock of any Buyer Subsidiary), lease, contract or debt or equity financing, that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion the Buyer’s obtaining of the Debt Financing.
Financing contemplated by any Commitment Letter. The Buyer shall not amend or alter, or agree to amend or alter, (di) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior Equity Commitment Letter in any manner adverse to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion Company without the prior written consent of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that Company or (vii) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the any Debt Commitment Letter following in any manner that would materially impair or delay or prevent the transactions contemplated by this Agreement without the prior written consent of the Company. If any Commitment Letter shall be terminated or modified in a manner materially adverse to the Buyer for any reason, the Buyer shall use commercially reasonable efforts to (i) obtain, and, if obtained, will provide the Company with a copy of, a new financing commitment that provides for at least the same amount of financing as contemplated by such reduction, together Commitment Letter as originally issued; (ii) enter into definitive agreements with other cash respect to such new financing; and cash equivalents available (iii) obtain funds under such agreements to Parent, is sufficient the extent necessary to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement; provided that the Buyer shall be under no obligation to obtain or seek to obtain any financing commitment containing terms or funding conditions less favorable to the Buyer or the Merger Sub than those included in such Commitment Letter (as determined in the Buyer’s good faith and reasonable discretion). In the event that, (x) after use of Buyer’s commercially reasonable efforts, Buyer is unable to obtain such new financing as described in the proceeds of such debt offerings or other incurrences have been received by Parent in cashimmediately preceding sentence, (y) Parent promptly notifies then the Company may, in its sole discretion, propose an alternative new financing that provides for at least the same amount of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification financing as contemplated by the Commitment Letters as originally issued on terms that are not less favorable to the Buyer and its Affiliates than those set forth in the Commitment Letters as originally issued (as determined in the Buyer’s good faith and reasonable discretion), and Buyer shall use commercially reasonable efforts to enter into definitive agreements with respect to such alternative new financing and obtain funds under such agreements to the extent necessary to consummate the transactions contemplated by this Agreement. In the event that a new Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the is executed in accordance with this Section 6.17, then such new Debt Commitment Letter have been reduced shall be the “Debt Commitment Letter” for purposes of this Agreement.
(b) The Company agrees to zero provide the Buyer with such cooperation in connection with the preceding sentencearrangement of the financings contemplated by the Commitment Letters as may be reasonably requested by the Buyer, including (i) participation in meetings, drafting sessions, due diligence sessions, management presentation sessions, “road shows” and sessions with rating agencies, (ii) using commercially reasonable efforts to prepare business projections and financial statements (including pro forma financial statements), (iii) assisting the obligations Buyer in preparing offering memoranda, private placement memoranda and similar documents, (iv) providing and executing documents as may reasonably be requested by the Buyer, including a certificate or certificates of the chief financial officer of the Company with respect to solvency and financial matters, (v) using commercially reasonable efforts to obtain surveys and title insurance as may be reasonably requested by the Buyer, and (vi) reasonably facilitating the pledge of collateral. The Company shall also use commercially reasonable efforts to cause legal counsel to provide customary legal opinions and an independent auditor of the Company to provide any unqualified opinions, consents or customary comfort letters with respect to its financial statements. The Company shall allow the Buyer’s representatives the opportunity to review and comment upon any such financial statements (including pro forma financial statements) in draft form and to allow such representatives access to the Company and supporting documentation with respect to the preparation of such financial statements and the independent auditors’ work papers relating to such financial statements. Notwithstanding the foregoing, (i) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries pursuant and (ii) neither the Company nor any of its Subsidiaries shall be required to Section 6.14 shall no longer be pay any commitment or other similar fee or incur any other liability in effectconnection with the financings contemplated by the Commitment Letters prior to the Effective Time (unless such fee or liability is subject to the immediately succeeding sentence or such commitment fee or liability is conditional on the occurrence of the Effective Time). FurtherThe Buyer shall, Parent promptly upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and fees and expenses of counsel incurred by the Company or any of its Subsidiaries in connection with such cooperation to the extent such actions shall have been requested by the right Buyer.
(c) The Company shall use commercially reasonable efforts to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other make its cash and cash equivalents and the cash and cash equivalents of its domestic and foreign Subsidiaries available for deposit into the Exchange Fund at or prior to Parentthe Closing. The parties acknowledge if the Company shall use its commercially reasonable efforts to take the actions set forth on Schedule 6.17(c), is sufficient or use commercially reasonable efforts to pay all amounts required cause such actions to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing aretaken, in respect of certainty of funding, equivalent to (or more favorable to then the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in have exerted its commercially reasonable efforts for this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectpurpose.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Concerto Software Inc), Merger Agreement (Aspect Communications Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, taken all actions and necessary to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and subject to the conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(sto: (i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to and negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing (the “Debt Financing Agreements”A) on the terms and subject to the conditions reflected in the Debt Commitment Letter or (B) on other terms that are acceptable to Parent and would not materially and adversely impact the ability of Parent to consummate the transactions contemplated by this Agreement on a timely basis; (ii) comply on a timely basis with all covenants, and satisfy on a timely basis all conditions, required to be complied with or satisfied by Parent in the Debt Commitment Letter and in such definitive agreements; (iii) cause the Debt Financing to be consummated at such time or from time to time as is necessary for Parent to satisfy its obligations under this Agreement; (iv) pay any and all commitment or other fees in a timely manner that become payable by Parent or Merger Sub under the Debt Commitment Letter following the date of this Agreement, to the extent that the failure to pay such fees would be reasonably expected to adversely impact the availability of the financing thereunder; (v) obtain rating agency approvals to the extent required to obtain the Debt Financing; and (vi) seek to enforce its rights under the Debt Commitment Letter; provided, however, that, notwithstanding anything to the contrary contained in this Agreement: (1) Parent shall have the right to substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as such substitute financing is subject to funding conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the funding conditions set forth in the Debt Commitment Letter, Letter and so long as such substitute financing would not materially and adversely impact the ability of Parent to consummate the Debt Financing at transactions contemplated by this Agreement on a timely basis; and (2) Parent shall not be required to, and Parent shall not be required to cause any other Person to, commence, participate in, pursue or prior defend any Legal Proceeding against or involving any of the Persons that have committed to the Closingprovide any portion of, (D) to comply or otherwise with its obligations under respect to, the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeFinancing. In the event that all any portion of the Debt Financing becomes unavailable on the terms and conditions precedent expressly set forth contemplated in the Debt Commitment Letter have been orfor any reason or the Debt Commitment Letter shall be terminated or modified in a manner materially adverse to Parent for any reason, upon funding Parent shall use its reasonable best efforts to obtain, as promptly as practicable, from the same and/or alternative financing sources alternative financing on terms not materially less favorable to Parent than the terms of the Debt Financing will be, satisfied, in an amount equal to the lesser of (i) an amount sufficient to consummate the Merger and the other transactions contemplated by this Agreement (after taking into consideration the funds otherwise available to Parent and Sub the Acquired Corporations), and (ii) the amount of financing that was contemplated by the Debt Financing Letter on the date of this Agreement. In the event any alternative or substitute financing is obtained by Parent in accordance with the terms of this Section 5.12(a) (the “Alternative Financing”), references in this Agreement to the Debt Financing (including, for avoidance of doubt, the references in this Section 5.12 and Exhibit A, but excluding references in Section 3.6) shall use their reasonable best be deemed to refer to the Alternative Financing, and if a new financing commitment letter is entered into in connection with such Alternative Financing (the “New Commitment Letter”), references in this Agreement to the Debt Commitment Letter (including, for avoidance of doubt, the references in this Section 5.12, but excluding the references in Section 3.6 and in clause “(ii)” of the preceding sentence) shall be deemed to refer to the New Commitment Letter. Parent will provide the Company with a copy of any New Commitment Letter obtained by Parent in connection with an Alternative Financing as promptly as practicable following the execution thereof.
(b) Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing, including the status of Parent’s efforts to enforce their rights comply with its covenants under, and cause satisfy the Financing Sourcesconditions contemplated by, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements shall give the Company prompt notice of any event or change that Parent determines will materially and adversely affect the ability of Parent to fund on or before the Effective Time consummate the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Daysbusiness days, if at any time prior to the Closing Date time: (i) the Debt Commitment Letter is shall expire or be terminated for any reason, ; or (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates notifies Parent in writing or orally that it will not provide, or it refuses such source no longer intends to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing to Parent on the terms set forth therein. Parent shall promptly provide any information reasonably requested by in the Company relating to any circumstances referred to in this Section 6.13(c)Debt Commitment Letter. Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under amend the Debt Commitment Letter following such reductionin any manner (including by way of a side letter or other binding agreement, together with other cash and cash equivalents available arrangement or understanding) that would: (A) expand in any material respect, or amend in a manner materially adverse to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification conditions to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter; (B) prevent or materially impair or delay the Closing; (C) subject to Parent’s right to obtain substitute financing set forth in Section 5.12(a), reduce the aggregate amount of financing set forth in the Debt Commitment Letter to supplement an amount below the amount needed (in combination with all funds held by or replace otherwise available to Parent and the Acquired Corporations) to consummate the Merger; or (D) to the Knowledge of Parent, materially and adversely impact the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter.
(c) During the Pre-Closing Period, upon the request of Parent, the Company shall, and shall cause its Subsidiaries and the Representatives of the Acquired Corporations to, cooperate reasonably with Parent in connection with Parent’s financing of the Merger, including by: (i) participating in meetings and road shows, if any; (ii) providing on a timely basis information reasonably requested by Parent relating to such financing; (iii) preparing in a timely manner business projections and financial statements (including pro forma financial statements); (iv) assisting in a timely manner in the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents; (v) using its reasonable best efforts to ensure that the syndication efforts of the lead arrangers for the Debt Financing (“or any Alternative Debt Financing”). True) benefit materially from the existing lending relationships of the Acquired Corporations; (vi) providing such assistance as Parent may reasonably require in procuring a corporate credit rating for Parent from Standard & Poor’s Rating Services and a corporate family credit rating for Parent from Xxxxx’x Investor Services, correct Inc. at least 30 business days prior to the Closing Date; and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (eachvii) obtaining the consent of, a “New Debt Commitment Letter”)and customary comfort letters from, together with all related fee Ernst & Young LLP (including by providing customary management letters and associated engagement requesting legal letters (solely in the case to obtain such consent) if necessary or desirable for Parent’s use of the fee letterCompany’s financial statements. Without limiting the generality of the foregoing, with only the fee amounts, pricing, “market flex” provisions Company shall ensure that all financial and other economic terms projections concerning the Acquired Corporations that do not adversely affect are made available to Parent after the enforceability, availability or conditionality of, or the aggregate amount date of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement are prepared in good faith and are based upon assumptions that are reasonable at the time made. Notwithstanding the foregoing: (A) such requested cooperation shall not unreasonably interfere with the ongoing operations of the Acquired Corporations; and (B) no Acquired Corporation shall be required to pay any commitment or other similar fee or incur any other liability in connection with the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement prior to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which Effective Time (unless such fee or liability is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter subject to the extent then immediately succeeding sentence or such fee or liability is conditional on the occurrence of the Effective Time). Parent shall, promptly upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket fees and expenses of the Company’s counsel and the Company’s accountants incurred by the Acquired Corporations in effectconnection with such requested cooperation, and (iii) and, except in cases involving fraud or intentional misconduct or intentional misrepresentation on the part of any reference in this Agreement to “fee letter” shall be deemed to include of the Acquired Corporations or any fee letter relating to the Debt Commitment Letter that is not superseded by Representative of any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing DateAcquired Corporation, Parent shall provide all funds required to effect indemnify and hold harmless the repayment Acquired Corporations against any costs, expenses or liabilities incurred by the Acquired Corporations as a result of all indebtedness under any Action against the Company Credit Agreement in full in accordance with Acquired Corporations arising out of any acts performed by the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Acquired Corporations at Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by request under this AgreementSection 5.12.
Appears in 2 contracts
Samples: Merger Agreement (Foundry Networks Inc), Merger Agreement (Foundry Networks Inc)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, Parent Vertical/Trigen shall, and shall cause its subsidiaries to, use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any the “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter ), contained in the event of a breach thereof by Commitment Letters as promptly as practicable taking into account the financing provider(santicipated Closing Date (after giving effect to and contemplating the Marketing Period) thereunder. Parent and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if Letters, in each case, without the prior written consent of the Osmotica Shareholders’ Representative (such amendmentconsent not to be unreasonably withheld, supplementconditioned or delayed); provided, replacementthat, modification or waiver without the consent of the Osmotica Shareholders’ Representative, Vertical/Trigen may (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter Letters to add or replace lenders, lead arrangers, bookrunners, syndication agents agents, additional purchasers or similar entities who had not executed the Commitment Letters as of the date hereof, or (B) otherwise modify or amend, or agree to any waivers in respect of, either Commitment Letter so long as as, in each case, (1) such action would not reasonably be expected to (x) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) in a manner that would cause the representation set forth in Section 4.08(c) to be untrue or inaccurate, (y) delay or prevent the Closing), or (z) impair the availability of the Financing on the Closing Date, and (2) the terms of such amendment, modification or waiver are not less beneficial to Vertical/Trigen, with respect to conditionality or enforcement, than those in the Commitment Letters as in effect on the date of this Agreement. Parent Vertical/Trigen shall promptly deliver to the Company true, complete and correct Osmotica copies of any such amendment, modification or replacement.
(b) Parent shallwaiver, and shall cause its Affiliates and Representatives topromptly consult with Osmotica in connection with any proposed amendment, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified modification or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect waiver pursuant to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this preceding clause (B), such breach or default would reasonably be expected to affect the availability . For purposes of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not5.12 and Sections 4.16 and 4.21, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Letters as permitted to be amended or modified pursuant to clause (ii) belowby this Section 5.12(a), (ii) any reference in this Agreement and references to the “Debt Commitment LetterLetters” shall include such documents as permitted to be deemed to include the Debt Commitment Letter which is not superseded amended or modified by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii5.12(a).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Business Combination Agreement (Osmotica Pharmaceuticals PLC), Business Combination Agreement (Osmotica Pharmaceuticals LTD)
Financing. (a) Subject Parent shall use reasonable best efforts to take, or cause to be taken, all actions, and use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable to obtain funds sufficient to fund the terms Merger Amounts. In furtherance and conditions not in limitation of this Agreementthe foregoing, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt proceeds of the Financing on the terms and subject only to the conditions described in the Debt Commitment Letter pursuant as promptly as possible but in any event prior to the Outside Date, including by (i) maintaining in effect the Commitment Letter, (ii) negotiating and entering into definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms thereof and conditions contained in the Commitment Letter (including any including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter), (iii) including using satisfying on a timely basis all conditions in the Commitment Letter and the Definitive Agreements and complying with its obligations thereunder and (iv) enforcing its rights under the Commitment Letter. Parent shall comply with its obligations, and enforce its rights, under the Commitment Letter and Definitive Agreements in a timely and diligent manner.
(b) In the event any portion of the Financing contemplated by the Commitment Letter becomes unavailable, regardless of the reason therefor, Parent shall (i) promptly notify the Company in writing of such unavailability and the reason therefor and (ii) use reasonable best efforts to seek arrange and obtain as promptly as practicable following the occurrence of such event, alternative financing for any such portion from alternative financing sources (the “Alternative Financing”) in an amount sufficient, when taken together with the available portion of the Financing, to enforce its rights under fund the Debt Merger Amounts and which does not include any conditions to the consummation of such alternative financing that are more onerous than the conditions set forth in the Commitment Letter as of the date hereof. Parent shall keep the Company reasonably informed on a current basis of the status of its efforts to arrange and consummate the Financing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing if there exists any actual or, to the event knowledge of Parent, threatened breach, default, repudiation, cancellation or termination by any party to the Commitment Letter or any Definitive Agreement and a breach thereof copy of any written notice or other written communication from any Financing Party or other financing source with respect to any actual or threatened breach, default, repudiation, cancellation or termination by any party to the financing provider(sCommitment Letter or any Definitive Agreement of any provision thereof. The foregoing notwithstanding, compliance by Parent with this Section 6.20 shall not relieve Parent of its obligations to consummate the transactions contemplated by this Agreement whether or not the Financing is available.
(c) thereunder. Parent shall not, without the Company’s prior written consentconsent of the Company (such consent not to be unreasonably withheld, permit conditioned or delayed), consent or agree to any amendment, supplement, replacement termination or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or the Definitive Agreements, if such amendment, supplement, replacement, modification or waiver (Ai) reduces decreases the aggregate amount of the cash proceeds from Financing (except to the Debt extent Parent has arranged Alternative Financing or Replacement Financing obtained in accordance with Section 6.20(b) or (Bd), as applicable), (ii) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would could reasonably be expected to (x) prevent, materially delay or prevent materially impede the funding in full consummation of the Debt Financing transactions contemplated by this Agreement, (or satisfaction of the conditions to the Debt Financingiii) on the Closing Date, or (y) materially and adversely affect impacts the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto Definitive Agreements, or (provided, that Parent may amend the Debt Commitment Letter to add iv) adds new (or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver adversely modifies any existing) conditions to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) ; provided, that Parent shall have and Merger Sub may amend the right Commitment Letter or the Definitive Agreements to substitute add lenders, lead and other arrangers, bookrunners, syndication and other agents or other entities who had not executed the net cash proceeds received by Parent after Commitment Letter as of the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material . Upon any amendment or modification to of the Debt Commitment Letter relating thereto will be promptly provided to requiring the consent of the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have provide a copy thereof to the right Company and, to substitute commitments the extent such amendment, replacement, supplement or modification has been made in respect compliance with this Section 6.20(c), the term “Commitment Letter” means the applicable Commitment Letter as so amended or modified. Notwithstanding the foregoing, compliance by Parent with this Section 6.20(c) shall not relieve Parent of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available its obligation to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all conditions precedent whether or not the Financing is available. To the extent Parent obtains Alternative Financing or Replacement Financing pursuant to funding of such financing are, in respect of certainty of funding, equivalent to Section 6.20(b) or (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”d), together with all related fee letters and associated engagement letters (solely in the case as applicable, or amends, replaces, supplements, modifies or waives any of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedpursuant to this Section 6.20(c), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references to the “Debt Financing,” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Financing Parties” and “Commitment Letter” (and other like terms in this Agreement) shall be deemed to include refer to such Alternative Financing and/or Replacement Financing, the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger commitments thereunder and the transactions contemplated by this Agreementagreements with respect thereto, or the Financing as so amended, replaced, supplemented, modified or waived.
Appears in 2 contracts
Samples: Merger Agreement (Industrial Logistics Properties Trust), Merger Agreement (Monmouth Real Estate Investment Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the The Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates Subsidiaries to, and shall use its commercially reasonable efforts to cause its Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided provide all cooperation that the Debt Commitment Letter may be amendedis necessary, supplemented, replaced, modified customary or waived as provided in this Section 6.13), (B) to negotiate advisable and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating Parent to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by assist Parent in cash, (y) Parent promptly notifies the Company arrangement of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid obtained in connection with the transactions contemplated by this Agreement and all conditions precedent to funding (it being understood that the receipt of such financing areis not a condition to the Merger); provided however, that nothing in this Section 7.08 shall require such cooperation or other action on the part of the Company, its Subsidiaries or their respective Representatives to the extent it would (A) unreasonably disrupt the conduct of the business or operations of the Company or its Subsidiaries or (B) require the Company, any of its Subsidiaries or any of their respective Representatives to enter into any agreement, take any corporate action or otherwise agree to pay any fees, reimburse any expenses or otherwise incur any liability (other than immaterial out-of-pocket expenses that shall be subject to reimbursement by Sub as set forth below) or give any indemnities prior to the Effective Time. Such cooperation shall include (i) preparing and furnishing all financial and other pertinent information regarding the Company and its Subsidiaries reasonably requested by Parent, (ii) reasonably facilitating the pledging of collateral, provided that no such documents or agreements shall be effective prior to the Effective Time, (iii) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of such financing and (iv) furnishing Parent and any lenders involved with such financing, with all documentation and other information required by any Governmental Authority with respect to such financing under applicable “know your customer” and anti-money laundering rules and regulations. Sub shall, and Parent shall cause Sub to, promptly, upon request by the Company, reimburse the Company for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding, for the avoidance of doubt, the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with such financing or pursuant to this Section 7.08(a), and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of such financing and any information used in connection therewith or pursuant to this Section 7.08(a), except with respect to (x) any information provided by the Company or any of its Subsidiaries or (y) any fraud or intentional misrepresentation or willful misconduct by any such persons. Notwithstanding anything in this Section 7.08 to the contrary, the Company shall not be required under this Section 7.08(a) to cause its officers or employees to participate in any road shows or similar events related to such financing.
(b) The Company shall, and shall cause its Subsidiaries to, deliver all notices and take all other actions to facilitate the termination at the Effective Time of all commitments in respect of certainty the Existing Credit Agreement, the repayment in full on the Merger Closing Date of fundingall obligations in respect of the Indebtedness thereunder, equivalent and the release on the Merger Closing Date of any Liens securing such Indebtedness and guarantees in connection therewith. In furtherance and not in limitation of the foregoing, the Company and its Subsidiaries shall use commercially reasonable efforts to (or more favorable deliver to Parent prior to the Offer Closing an executed payoff letter with respect to the Existing Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type, from the applicable agent on behalf of the persons to whom such Indebtedness is owed, which Payoff Letter together with any related release documentation shall, among other things, include the payoff amount and provide that Liens (and guarantees), if any, granted in connection with the Existing Credit Agreement relating to the assets, rights and properties of the Company than) and its Subsidiaries securing or relating to such Indebtedness, shall, upon the conditions precedent payment of the amount set forth in the Debt Commitment Letterapplicable Payoff Letter at or prior to the Effective Time, to supplement or replace the Debt Financing (“Alternative Debt Financing”)be released and terminated. True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case The obligations of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified Company pursuant to clause (iithis Section 7.08(b) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed subject to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter Sub providing or causing to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide provided all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything such repayments at or prior to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementEffective Time.
Appears in 2 contracts
Samples: Merger Agreement (Popeyes Louisiana Kitchen, Inc.), Merger Agreement (Restaurant Brands International Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter, including using best efforts to (i) maintain in effect the Commitment Letter pursuant and, if entered into prior to the Closing, the definitive documentation with respect to the Financing contemplated by the Commitment Letter (the “Definitive Agreements”), (ii) negotiate and execute the Definitive Agreements on terms thereof and conditions contemplated by the Commitment Letter (including any “market flex” provisionsprovisions thereof) including using its reasonable best efforts or on such other terms and conditions that are in the aggregate, not materially less favorable to seek to enforce its rights under Parent than those contained in the Debt Commitment Letter and do not expand upon the conditions precedent set forth in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent make any portion of the funding in full of the Debt Financing (less likely to be obtained or satisfaction delay in any material respect the funding of the Financing and, upon execution thereof, deliver a copy thereof to the Company (which copy shall exclude and/or redact any references to fees contained therein), (iii) satisfy on a timely basis all conditions applicable to Parent and its Subsidiaries in the Commitment Letter and Definitive Agreements that are within its control and comply with its obligations thereunder and not take or fail to take any action that would be reasonably expected to prevent or impede or delay the availability of the Financing, (iv) take each of the actions required of the Company and its Subsidiaries in paragraphs (b)(i) through (b)(ix) below with respect to itself and its Subsidiaries, and (v) enforce its rights under the Commitment Letter and Definitive Agreements in the event of a breach by the Financing Sources that impedes or delays the Closing, including by seeking specific performance of the parties thereunder if necessary, unless Parent reasonably concludes that seeking specific performance is impracticable or not reasonably likely to succeed under such circumstances. In the event that all conditions to the Debt Financing) on the Closing DateFinancing have been satisfied, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to cause the lenders and the other persons providing such Financing to fund such Financing on the Closing Date. Notwithstanding anything to the contrary herein, Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter or the Definitive Agreements, including to add additional lenders, agents or other parties to the Commitment Letter and/or the Definitive Agreements, and/or substitute other debt (but not equity financing) for all or any portion of the Financing from the same and/or alternative financing sources, including by electing to utilize its existing senior secured credit facility as a form of alternative financing (subject to obtaining the consent of the Required Lenders (as defined in such credit facility) prior to the consummation of the Merger), provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or Definitive Agreements that amends the Financing and/or substitution of all or any portion of the Financing shall not (A) expand upon the conditions precedent to maintain the Financing as set forth in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (B) to negotiate prevent or impede or delay the consummation of the Merger and enter into definitive agreements with respect to the Debt Commitment Letter other transactions contemplated by this Agreement or (the “Debt Financing Agreements”C) on the provide for terms and conditions (including any “flex” provisions) that are not are, in the aggregate, materially less favorable to Parent than those contained in the Debt Commitment Letter. Parent shall be permitted to reduce the amount of Financing under the Commitment Letter or Definitive Agreements in its reasonable discretion, provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent, including cash on hand and the proceeds of loans under existing revolving credit facilities of Parent, to consummate the Merger and the other transactions contemplated by this Agreement (C) to satisfy on a timely basis (or obtain including the waiver ofpayment of the Required Refinancing Indebtedness), and provided further that such reduction shall not (I) expand upon the conditions precedent to the Financing as set forth in the Commitment Letter in a manner that will not impede the ability would reasonably be expected to make any portion of the parties funding of the Financing less likely to be obtained or delay in any material respect the funding of the Financing, (II) prevent or impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement, or (III) provide for other terms and conditions (including any “flex” provisions) that are, in the aggregate, materially less favorable to Parent than those in the Commitment Letter. If any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions contemplated in the Commitment Letter and such portion is reasonably required to consummate the Merger, all conditions to receipt Merger and the other transactions contemplated by this Agreement (including the payment of the full Required Refinancing Indebtedness), Parent shall use its best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative financing from alternative financing sources in an amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, sufficient to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders Merger and the other persons providing transactions contemplated by this Agreement (including the repayment of the Required Refinancing Indebtedness), provided, that without the prior written consent of the Company (not to be unreasonably withheld), no such alternative financing (a) shall be equity financing or committing (b) shall be on terms and conditions (including any “flex” provisions and conditions to provide funding) that are not, in the Debt Financing aggregate, at least as favorable to comply with their obligations under Parent and the Debt Company as those in the Commitment Letter. Parent shall give the Company prompt oral and written notice (but in any event not later than 48 hours after the occurrence) of any material breach by any party to the Commitment Letter and definitive financing agreements and or Definitive Agreements or of any condition not likely to fund on be satisfied, in each case, of which Parent becomes aware or before any termination or waiver, amendment or other modification of the Effective Time the Debt FinancingCommitment Letter or Definitive Agreements. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts effort to arrange the Debt Financing, and, promptly following request by the Company, Financing and shall provide to the Company copies of all executed Debt documents related to the Financing Agreements(excluding fee letters and engagement letters, except to the extent that such documents contain any conditions to funding or “flex” provisions (excluding provisions related solely to fees)). In the event that Parent commences an enforcement action to enforce its rights under the Commitment Letter or the Definitive Agreements and/or cause the Financing Sources to fund the Financing (any such action, a “Financing Action”), Parent shall (x) keep the Company reasonably informed of the status of the Financing Action and (y) at the reasonable request of the Company, shall make Parent’s employees and Representatives (other than any of its Financing Sources) reasonably available to discuss the status of, and material developments with respect to, the Financing Action.
(cb) Without limiting The Company shall provide, and shall cause its Subsidiaries to provide, and shall use its reasonable best efforts to cause each of its and their respective Representatives, including legal, tax, regulatory and accounting, to provide, all cooperation reasonably requested by Parent and/or the foregoing, Parent agrees to notify Financing Sources in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company promptlyand its Subsidiaries), and in any event within two (2) Business Daysincluding, if at any time prior to the Closing Date but not limited to, (i) promptly providing information relating to the Debt Company and its Subsidiaries to the Financing Sources to the extent reasonably requested by Parent to assist in preparation of customary offering or information documents to be used for the completion of the Financing as contemplated by the Commitment Letter is terminated for any reasonLetter, (ii) Parent becomes aware participating in a reasonable number of any breach or default meetings (including customary one-on-one meetings with the parties acting as lead arrangers for the Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company), presentations, road shows, drafting sessions, due diligence sessions (including accounting due diligence sessions) and sessions with the rating agencies, (iii) assisting in the preparation of documents and materials, including, but not limited to, (A) by any customary offering documents, bank information memoranda, prospectuses and similar documents (including historical and pro forma financial statements and information) for any of the Financing, and (B) materials for rating agency presentations, (iv) cooperating with the marketing efforts for any of the Financing Source party (including consenting to the Debt Commitment Letter use of the Company’s and its Subsidiaries’ logos; provided that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or its Subsidiaries or the reputation or goodwill of the Company or any Debt of its Subsidiaries), (v) executing and delivering (or using reasonable best efforts to obtain from its advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from its advisors), customary certificates (including a certificate of the principal financial officer of the Company or any Subsidiary with respect to solvency matters), accounting comfort letters (including consents of accountants for use of their reports in any materials relating to the Financing), legal opinions or other documents and instruments relating to guarantees and other matters ancillary to the Financing Agreement as may be reasonably requested by Parent as necessary and customary in connection with the Financing, (vi) assisting in (A) the preparation of and entering into one or more credit agreements, currency or interest hedging agreements or (B) the amendment of any other party of the Company’s or its Subsidiaries’ existing credit agreements, currency or interest hedging agreements, in each case, on terms satisfactory to Parent and that are reasonably requested by Parent in connection with the Debt Commitment Letter Financing; provided that no obligation of the Company or any Debt of its Subsidiaries under any such agreements or amendments shall be effective until the Effective Time, (vii) as promptly as practicable, furnishing Parent and the Financing Agreement if, Sources with all financial and other information regarding the Company and its Subsidiaries as may be reasonably requested by Parent and/or the Financing Sources to assist in preparation of customary offering or information documents to be used for the case of this clause (B), such breach or default would reasonably be expected to affect the availability completion of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing as contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wviii) using its reasonable best efforts, as appropriate, to have its independent accountants provide their reasonable cooperation and assistance and (ix) cooperating reasonably with Parent’s Financing Sources’ due diligence, to the aggregate amount extent customary and not unreasonably interfering with the business of the Debt Financing committed under Company; provided that, until the Debt Commitment Letter following such reductionEffective Time occurs, together with other cash and cash equivalents available to Parent, is sufficient neither the Company nor any of its Subsidiaries shall (1) be required to pay all amounts required any commitment or other similar fee, (2) have any liability or any obligation under any credit agreement or any related document or any other agreement or document related to be paid the Financing (or alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement), (x3) the proceeds of such debt offerings or be required to incur any other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero liability in connection with the preceding sentenceFinancing (or any alternative financing that Parent may raise in connection with the transactions contemplated by this Agreement) or (4) be required to issue a notice of optional redemption for any outstanding series of notes of the Company or any of its Subsidiaries if the indenture governing such series of notes does not provide that such notice may be conditioned on the occurrence of the Effective Time unless, in the obligations case of clauses (1), (2) and (3), reimbursed or indemnified by Parent to the reasonable satisfaction of the Company; provided, further, that (I) all non-public or other confidential information provided by the Company or any of its Representatives pursuant to this Section 5.12 shall be kept confidential in accordance with the Confidentiality Agreement, except that Parent shall be permitted to disclose such information to potential syndicate members during syndication, subject to customary confidentiality undertakings by such potential syndicate members and (II) the Company shall be permitted a reasonable period to comment on any documents or other information circulated to potential financing sources that contain or are based upon any such non-public or other confidential information. Parent (A) shall promptly, upon request by the Company, reimburse the Company for all reasonable out of pocket costs (including reasonable attorneys’ fees) incurred by the Company, any of its Subsidiaries or their respective Representatives in connection with the cooperation of the Company and its Subsidiaries pursuant and their Representatives contemplated by this Section 5.12, (B) acknowledges and agrees that the Company, its Subsidiaries and their respective Representatives shall not have any responsibility for, or incur any liability to Section 6.14 shall no longer be in effect. Furtherany person prior to the Effective Time under, Parent shall have the right to substitute commitments in respect of other financings for all Financing or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid that Parent may raise in connection with the transactions contemplated by this Agreement and (C) shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent to funding losses, damages, claims, costs or expenses suffered or incurred by any of such financing are, them in respect of certainty of funding, equivalent to (or more favorable to connection with the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case arrangement of the fee letterFinancing and any information used in connection therewith, with only the fee amountsunless such loss, pricingdamage, “market flex” provisions and other economic terms that do not adversely affect the enforceabilityclaim, availability cost or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to expense results from the Company. ’s or its Subsidiary’s gross negligence or willful misconduct.
(c) In the event any New Debt that the Commitment Letter is obtainedor Definitive Agreements are amended, replaced, supplemented or otherwise modified, including as a result of obtaining alternative financing in accordance with Section 5.12(a), or if Parent substitutes other financing for all or a portion of the Financing in accordance with Section 5.12(a), each of Parent and the Company shall comply with its covenants in Section 5.12(a) and (ib) any reference in this Agreement with respect to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter or Definitive Agreements, as applicable, as so amended, replaced, supplemented or otherwise modified pursuant and with respect to clause (ii) below, (ii) any reference in this Agreement such other financing to the “Debt Commitment Letter” shall be deemed same extent that Parent and the Company would have been obligated to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter comply with respect to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing.
(ed) On Parent acknowledges and agrees that neither the Closing Date, Parent shall provide all funds required obtaining of the Financing or any alternative financing is a condition to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Silgan Holdings Inc), Merger Agreement (Graham Packaging Co Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights with respect to funding under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) subject to Parent’s rights under Section 7.12(b) which shall not require the Company’s consent, reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights with respect to funding against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Acceptance Time or the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.137.12), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Offer or the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights with respect to funding under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations with respect to funding under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c7.12(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all cash amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 7.13 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all cash amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each fee letter relating to each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii7.13(a)(vi).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Offer, the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Microsemi Corp), Merger Agreement (PMC Sierra Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent The Company shall use its reasonable best efforts to takeensure that as of the Closing Date, the Company has the funds necessary to consummate the transactions contemplated by the definition of the term Financing, and shall not, and shall not permit any of its Subsidiaries to, take or agree to take any action that is reasonably likely to prevent or in any material respect impair its ability to complete, or cause delay the Financing.
(b) In the event that all conditions to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to have been satisfied (or would be satisfied simultaneously with the terms thereof (including any “market flex” provisions) including using Closing), the Company shall use its reasonable best efforts to seek cause the Lender to enforce fund thereunder (including, taking enforcement action to cause the Lender to provide such financing). The Company shall not agree to or permit any amendment, supplement or other modification of, or waive any of its rights under under, the Debt Commitment Letter or any other agreements related to the Financing, in the event of a breach thereof by the financing provider(s) thereunder. Parent shall noteach case, without the CompanyBPW’s prior written consent, permit any amendmentexcept amendments, supplement, replacement supplements or modification other modifications thereof to be made to, or any waiver provide for the assignment of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount a portion of the cash proceeds from Financing to additional agents or arrangers and the Debt Financing granting to such persons of approval rights as are customarily granted to additional agents or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunnerswhich amendments, syndication agents supplements or similar entities so long as such action other modifications would not reasonably be expected to prevent, materially impede or materially delay the consummation of the Financing or prevent the Closing). Parent shall promptly deliver to the Company truetransactions contemplated by this Agreement; provided, complete and correct copies of that upon any such amendment, modification supplement or replacement.
(b) Parent shallmodification, and the Company shall cause its Affiliates and Representatives toprovide a copy thereof to BPW. Notwithstanding anything herein to the contrary, use its reasonable best efforts (A) the Company shall be permitted to maintain in effect replace the Debt Commitment Letter with an Alternative Financing Arrangement (provided as defined in the Commitment Letter) for not less than the full principal amount of the financing contemplated by the Commitment Letter; provided, that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that (including with respect to conditionality and amounts available to be borrowed by the Company on the Closing Date) are not materially no less favorable to Parent the Company than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis Letter (or obtain as otherwise agreed to in writing by BPW).
(c) The Company shall give BPW prompt written notice of any material breach by any party to the waiver of), and Commitment Letter (or any other commitments or definitive documentation in a manner that will not impede the ability respect of the parties to consummate Financing) of which the Merger, all conditions to receipt Company becomes aware or any termination of the full amount Commitment Letter (or any other commitments or definitive documentation in respect of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeFinancing). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent The Company shall keep the Company BPW informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (BPW Acquisition Corp.), Merger Agreement (Talbots Inc)
Financing. (a) Subject Parent will not agree to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to takeany amendment or modification to, or cause to be takengrant any waiver of, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights provision under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver consent of any provision under, the Debt Commitment Letter Company if such amendment, supplement, replacement, modification or waiver would (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or impose additional conditions to the initial funding conditions, or otherwise expands amend or modify any of the conditions in a manner that is adverse in any material respect to Parent or the Company, to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, (ii) delay the timing of the funding of the Debt Financing or prevent or make less likely to occur, the funding of the commitments thereunder, on the Closing Date, (iii) reduce the aggregate cash amount of the funding commitments thereunder, or (yiv) adversely affect impact the ability of Parent or Merger Sub to enforce its rights against any other parties party to the any Debt Commitment Letter or the definitive agreements documentation with respect thereto (providedthe foregoing clauses (i) through (iv), that the “Prohibited Changes”); provided that, without the consent of the Company, Parent may amend the Debt Commitment Letter to add or replace additional lenders, lead arrangers, bookrunners, syndication bookrunners and agents or similar entities to implement or exercise any of the “market flex” provisions contained in the Fee Letter so long as such action amendment would not reasonably be expected to impose additional conditions on the obligations of the Financing Sources or delay or prevent the Closing). Parent shall promptly deliver will not permit or consent to any waiver of any remedy under the Debt Commitment Letter or any early termination of the Debt Commitment Letter. In the event that all conditions contained in the Debt Commitment Letter have been satisfied, Parent will use reasonable best efforts to cause the Financing Sources to comply with their funding obligations thereunder. Notwithstanding the foregoing or any provision of this Agreement to the Company truecontrary, complete Parent will be entitled to replace the Debt Commitment Letter by entering into definitive documentation with respect to the Debt Financing on or prior to the Closing so long as such definitive documentation is on terms and correct copies of any such amendment, modification or replacement.
(b) conditions consistent with the Debt Commitment Letter and would not result in Prohibited Changes. Parent shall, and shall cause its Affiliates and Representatives to, will use its reasonable best efforts to (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive documentation entered into in this Section 6.13connection therewith), (B) satisfy on a timely basis all conditions in the Debt Commitment Letter (including any definitive documentation entered into in connection therewith) applicable to negotiate Parent and enter into Merger Sub to obtaining the Debt Financing as promptly as practicable (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise comply with its obligations under this Agreement), (C) promptly upon execution thereof, at the request of the Company, provide to the Company complete executed copies of any definitive agreements documentation with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterFinancing, (CD) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, and (DE) to comply with fully enforce the counterparties’ obligations and its obligations rights under the Debt Commitment LetterLetter (including any definitive documentation entered into in connection therewith), and (E) including by suit or other appropriate proceeding, to consummate cause the lenders under the Debt Financing at or prior to the Effective Time. In the event that fund in accordance with their respective commitments if all conditions precedent expressly set forth to funding the Debt Financing in the Debt Commitment Letter (including any definitive documentation entered into in connection therewith) have been orsatisfied or waived. Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s and Merger Sub’s efforts to arrange the Debt Financing and to satisfy the conditions thereof, including, upon funding Company’s reasonable request, (1) advising and updating the Company, in a reasonable level of detail, with respect to status, proposed Closing Date and material terms of the material definitive documentation for the Debt Financing and (2) providing copies of the current drafts of all such definitive documentation. If any portion of the Debt Financing will beotherwise becomes unavailable, satisfiedand such portion is reasonably required to fund the aggregate Merger Consideration and all fees, expenses and other amounts contemplated to be paid by Parent, Merger Sub or Surviving Corporation pursuant to this Agreement, Parent and Merger Sub will promptly arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to consummate the Merger. Notwithstanding anything in this Section 5.3 to the contrary, solely to the extent Parent shall use their reasonable best efforts receive prior to enforce their rights underthe Closing Date sufficient cash proceeds that are available to consummate the Merger on the Closing Date, and cause Parent will have the Financing Sourcesright to substitute the proceeds of consummated equity, lenders and equity linked or convertible, exchangeable or debt issuances or other incurrences of debt for all or any portion of the other persons providing or committing amount contemplated to provide be provided by the Debt Financing to comply with their obligations under contemplated by the Debt Commitment Letter and definitive financing agreements and may reduce the amount of the commitments thereunder. Any reference in this Agreement to fund on or before the Effective Time the “Debt Financing” will include any such alternative financing or such replacement financing, any reference in this Agreement to the “Debt Commitment Letter” will include the commitment letter and the corresponding fee letter with respect to any such alternative financing or such replacement financing, and any reference in this Agreement to the “Financing Sources” will include the financing institutions contemplated to provide any such alternative financing or replacement financing. Parent shall will keep the Company informed on a current prompt basis and in reasonable detail of the status of its efforts to arrange the Debt FinancingFinancing and will, andupon the Company’s reasonable request, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoingalternative or replacement financing commitments and related fee letters, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior redacted to the Closing Date (i) same extent as copies of the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received delivered by Parent after the date hereof and on or prior to the Closing from consummated offerings or other incurrences of debt (date hereof. Parent acknowledges and agrees that its obligations hereunder, including notes) by Parent for all or any portion of its obligations to consummate the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does Transactions, are not result in a breach or default undersubject to, or violation ofconditioned on, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount receipt of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Transactions or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementother financing.
Appears in 2 contracts
Samples: Merger Agreement (Westlake Chemical Corp), Merger Agreement (Axiall Corp/De/)
Financing. (a) Subject Cedar shall use, and shall cause the Cedar Subsidiaries to the terms and conditions of this Agreementuse, Parent shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner provided that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent Cedar may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or otherwise replace or amend the Commitment Letter so long as such action would not reasonably be expected to delay or prevent the ClosingClosing or add conditions or otherwise materially restrict the availability of the Financing). Parent In the event that Cedar becomes aware that any portion of the Financing is unavailable in the manner or from the sources contemplated in the Commitment Letter, Cedar use its reasonable best efforts to obtain alternative financing for such portion from alternative sources. Cedar shall promptly deliver not agree to the Company true, complete and correct copies of nor permit any such amendment, modification or replacementwaiver (other than a waiver of a condition to the Financing) of the Commitment Letter, any other agreement, arrangement or understanding relating to the Financing or the definitive agreements relating to the Financing that is adverse to Cedar or Pine without Pine’s prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
(b) Parent shallPine shall provide, shall cause the Pine Subsidiaries to provide, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain cause its and their Representatives to provide, such reasonable cooperation in effect connection with the Debt Commitment Letter (provided that arrangement of the Debt Commitment Letter Financing as may be amendedreasonably requested by Cedar, supplementedincluding participating in meetings and presentations, replacedproviding information, modified or waived as provided in this Section 6.13)documents, (B) to negotiate opinions and enter certificates, entering into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms agreements, and conditions other actions that are not materially less favorable or may be customary in connection with the Financing or necessary to Parent than those contained in the Debt Commitment Letter, (C) permit Cedar to satisfy on a timely basis (fulfill conditions or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on related fee letters; provided that none of Pine or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail any of the status of its efforts Pine Subsidiaries shall be required to arrange pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability in connection with the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting All non-public or otherwise confidential information regarding either party obtained by the foregoing, Parent agrees other party pursuant to notify the Company promptly, and in any event within two paragraphs (2a) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (Bb) any other party shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that Cedar and its Representatives shall be permitted to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any disclose information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof as necessary and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together consistent with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid customary practices in connection with the transactions contemplated Financing subject to customary confidentiality arrangements. Cedar shall indemnify and hold harmless Pine, the Pine Subsidiaries and their respective Representatives from and against any and all losses or damages suffered or incurred by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero them in connection with the preceding sentence, the obligations arrangement of the Company Financing and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information utilized in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttherewith.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Embarq CORP), Merger Agreement (Centurytel Inc)
Financing. (a) Subject Parent shall use reasonable best efforts to:
(i) maintain in effect the Commitment Letter and Fee Letter in accordance with their terms; and
(ii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions in the Commitment Letter, Fee Letter and the Definitive Agreements and comply with its obligations thereunder.
(b) Unless, and to the terms extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, from and conditions after the execution of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) and Fee Letter, including using its reasonable best efforts to:
(i) negotiate definitive agreements with respect to seek to enforce its rights under the Debt Commitment Letter Financing (the “Definitive Agreements”) not materially less favorable to Parent and Merger Sub, in the event of a breach thereof by aggregate, than the financing provider(sterms and conditions contained therein (including, as necessary, the “flex” provisions contained in the Fee Letter); and
(ii) thereunder. consummate the Debt Financing at or prior to the Closing.
(c) Parent shall not, without the Company’s prior written consentconsent of the Company (which shall not be unreasonably withheld, delayed, conditioned or denied), permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not be deemed a voluntary replacement for purposes of the Debt sentence), the Commitment Letter or Fee Letter if such amendment, supplementmodification, replacement, modification or waiver or voluntary replacement (Aw) reduces the aggregate amount of the cash proceeds from the Debt Financing adds new (or (Badversely modifies any existing) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of as compared to those in the conditions to the Debt Financing) Commitment Letter and Fee Letter as in effect on the Closing Datedate of this Agreement, or (yx) adversely affect affects the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter, Fee Letter or the definitive agreements with respect thereto Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date of this Agreement, (provided, that Parent may amend y) reduces the aggregate amount of the Debt Financing (unless after giving effect to such reduction, the representation and warranty in Section 5.09(d) shall be true and correct), or (z) would otherwise reasonably be expected to prevent, materially impede or materially delay the Closing; provided that, for the avoidance of doubt, no consent from the Company shall be required for (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to add or replace adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Commitment Letter, Fee Letter or Definitive Agreements so long as such action would not reasonably be expected to delay or prevent prohibited by the Closingforegoing clauses (w) - (z). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(bd) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange consummate the Debt Financing, and, promptly following request by the Company, . Parent shall provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware with prompt notice of any breach breach, default, termination or default repudiation (Aor any written notice thereof) by any Financing Source party to any Commitment Letters or the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case Definitive Agreements of this clause (B), such breach or default which Parent gains knowledge and that would reasonably be expected to affect prevent, materially impede or materially delay the availability Closing. Unless, and to the extent, Parent or Merger Sub have sufficient cash from other sources (including by reason of a capital markets or other financing transaction) available to satisfy their obligations under this Agreement, from and after the Debt Financing or (iii) a counterparty indicates execution of this Agreement, in writing or orally the event that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested becomes unavailable (other than as a result of a breach by the Company relating to any circumstances referred to in of this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without Agreement which prevents or renders impracticable the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further), Parent shall have will (1) use its reasonable best efforts to obtain alternative debt financing (the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True) from the same or other sources, correct in an amount such that the representation in Section 5.09(d) shall be true and complete copies of each alternative financing commitment in respect of such correct, and which Alternative Debt Financing (eachdoes not include any incremental conditionality to the consummation thereof that are more onerous to Parent or the Company, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case aggregate, than the conditions set forth in the Commitment Letter and Fee Letter in effect as of the fee letter, with only date of this Agreement and (2) promptly notify the fee amounts, pricing, “market flex” provisions Company of such unavailability and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or reason therefor.
(e) For purposes of the aggregate amount of proceeds available under, the Debt Financing contained therein redactedforegoing Sections 6.10(a) – (d), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the term “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include any commitment letter (or similar agreement) with respect to any Alternative Debt Financing, (ii) the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to term “fee letterFee Letter” shall be deemed to include any fee letter relating (or similar agreement) with respect to any Alternative Debt Financing and (iii) the term “Lenders” shall be deemed to include any lenders providing the Alternative Debt Commitment Letter Financing. Other than for purposes of Section 5.09, the term “Debt Financing” shall be deemed to include any permitted Alternative Debt Financing or any capital markets or other financing transactions intended to or that is not superseded by any New Debt Commitment Letter at the time in question does fund Parent and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, ParentMerger Sub’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by under this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Opco shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Bank Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its commercially reasonable best efforts (i) to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the negotiate definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, therein and (Cii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions applicable to receipt of the full amount of the Debt Financing at the Closing set forth therein Parent and Opco in such definitive agreements that are within its the control or subject of Parent and Opco. Parent and Opco shall use commercially reasonable efforts to its influence andcomply with their respective obligations, upon satisfaction and enforce their respective rights, under the Commitment Letter. In the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter, Parent and Opco shall use commercially reasonable efforts to obtain any such portion from alternative sources; provided, however, that in the event that any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Commitment Letter as a result of a failure to satisfy any of the conditions set forth in paragraph (e) of Exhibit B to the Debt Commitment Letter, Parent and Opco shall use best efforts to consummate obtain any such portion from alternative sources. Notwithstanding the Debt Financing at or prior foregoing, Parent and Opco shall be under no obligation to obtain any alternative financing unless it can be obtained on substantially similar economic terms (to Parent, Opco and the Closing, (DEquity Investor) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly as those set forth in the Debt Commitment Letter. Parent shall give the Company prompt notice of any breach by any party to the Commitment Letter have been or, upon funding or any termination of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingLetter. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will shall not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates topermit, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentencemade to, or any waiver under, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). Truein each case, correct which would materially and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or likelihood that the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), contemplated thereby will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by obtained on a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttimely basis.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Specialty Laboratories Inc), Merger Agreement (Ameripath Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, without the consent of the Company each of Parent and Merger Sub will not permit any amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy pursuant to, the Commitment Letters prior to the Effective Time if such amendment, replacement, supplement, modification or waiver would, or would reasonably be expected to, (i) reduce the aggregate net amount of the Financing below the Required Financing Amount, including by changing the amount of the fees to be paid or the original issue discount of the Debt Financing; (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (1) materially delay or prevent the Closing of the Merger or (2) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any material respect; or (iii) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letters or the definitive agreements with respect thereto; provided, that for the avoidance of doubt no consent from the Company shall be required for: (1) any amendment, replacement, supplement or modification of the Debt Commitment Letters that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (2) the implementation of a Replacement Commitment Facility (as defined in the Debt Commitment Letter entered into as of the date hereof) so long as doing so would not reasonably be expected to result in any of the outcomes described in the foregoing clauses (i)-(iii), (3) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof, (4) Parent or any Subsidiary thereof to issue senior notes or other securities in lieu of all or a portion of the senior bridge facility referred to in the Debt Commitment Letter as of the date of this Agreement or the issuance of preferred equity at the Closing (in lieu of the senior notes or other debt securities in lieu of a portion of the senior bridge facility) to Permitted Preferred Purchasers, or (5) Permitted Co-Investors being added to the Equity Commitment Letter or delivering an equity commitment letter of their own in substantially similar form (except for amount) to the Equity Commitment Letter for a portion of the Equity Financing; and provided further, notwithstanding the foregoing or anything to the contrary in this Agreement, in no event in and of itself shall a Permitted Co-Investor becoming, or seeking to become (including in connection with seeking any Approval required to become in connection with the Merger), a direct or indirect equity investor in Parent or its affiliates after the date of this Agreement and effective prior to or as of the Closing be deemed to result in the outcomes described in the foregoing clauses (i)-(iii). Parent shall promptly furnish to the Company a copy of any amendment, replacement, supplement, modification or waiver relating to the Commitment Letters. Any reference in this Agreement to (x) the “Financing” will include the financing contemplated by the Commitment Letters as amended, replaced, supplemented or modified; and (y) “Equity Commitment Letter,” “Debt Commitment Letters” or “Commitment Letters” will include such documents as amended or modified.
(b) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub will use its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable or proper to arrange arrange, consummate and obtain the Debt Financing on a timely basis (taking into account the Marketing Period), but in any event no later than the Effective Time, on the terms and conditions (including, to the extent required, the full exercise of any “flex” provisions in any Fee Letter) described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including Letters, including, but not limited to, using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter Letters in accordance with the terms and subject to the conditions thereof; (provided that the Debt Commitment Letter may be amendedii) negotiate, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate execute and enter into deliver definitive agreements with respect to the Debt Financing contemplated by the Debt Commitment Letter and related Fee Letter on a timely basis (taking account of the “Debt Financing Agreements”Marketing Period) on the terms and conditions that are not materially less favorable to Parent than those contained (including any “flex” provisions in the related Fee Letter) contemplated by the Debt Commitment Letter, Letter and related Fee Letter (Cor any other terms acceptable to Parent so long as Parent remains in compliance with Section 5.13(a)); (iii) to satisfy on a timely basis (or obtain the waiver of), and in ) on a manner that will not impede the ability of the parties to consummate the Merger, timely basis all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth contained in the Debt Commitment LetterLetter and related Fee Letter and such definitive agreements related thereto within the control of Parent or Merger Sub and in the Equity Commitment Letter on or prior to the Effective Time; (iv) in the event that all conditions contained in the Commitment Letters (other than, with respect to the Debt Financing, the availability of the cash equity contribution) have been satisfied and Parent is required to consummate the Debt Closing pursuant to Sections 6.1 and 6.2 and the Marketing Period has been completed, consummate the Financing at or prior to the Closing, including using reasonable best efforts to cause the Lenders to fund the Debt Financing at the Closing; (Dv) to comply with its obligations under pursuant to the Debt Commitment Letter, and (E) to consummate the Debt Financing at Letters on or prior to the Effective Time; and (vi) enforce its rights pursuant to the Commitment Letters. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Merger Sub shall use their reasonable best efforts will fully pay, or cause to enforce their rights underbe fully paid, all commitment or other fees arising pursuant to the Commitment Letters as and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. when they become due.
(c) Parent shall (i) keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, ; and (ii) provide to the Company with copies of all executed definitive agreements and other documents related to the Debt Financing Agreements.
(c) Financing. Without limiting the generality of the foregoing, Parent agrees to notify and Merger Sub must give the Company promptly, and prompt notice in writing (but in any event within two (2) Business Days, if at any time prior to Days after obtaining knowledge of the Closing Date occurrence or discovery of) (iA) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach (or threatened breach), default (Aor any event or circumstance that, with notice or lapse of time or both, could reasonably be expected to give rise to any breach or default), cancellation, termination or repudiation by any party to the Commitment Letters or definitive agreements related to the Financing; (B) of the receipt by Parent or Merger Sub of any oral or written notice or communication from any Lender Related Party with respect to any (1) actual or threatened breach, default, cancellation, termination or repudiation (or notice or communications from lenders or other sources of Debt Financing to Parent or Merger Sub of any such actual or threatened breach, default, cancellation, termination or repudiation received by Parent or Merger Sub) by any Financing Source party to the Debt Commitment Letter Letters or any Debt definitive agreements related to the Financing Agreement of any provisions of the Commitment Letters or such definitive agreements; or (B2) material dispute or disagreement between or among any other party parties to the Debt Commitment Letter Letters or any Debt definitive agreements related to the Financing Agreement if, that Parent believes in the case of this clause (B), such breach or default good faith would reasonably be expected to affect be adverse to the availability timely completion of the Debt Financing Financing; and (C) if for any reason Parent or (iii) a counterparty indicates in writing or orally Merger Sub at any time believes that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on Letters or any definitive agreements related to the terms set forth thereinFinancing. Parent shall promptly provide any information reasonably requested by the Company relating to any of the circumstances referred to in this Section 6.13(c). the previous sentence as promptly as reasonably practical after the date that the Company delivers a written request therefor to Parent; provided, however, that Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction not be required to furnish such information if Parent in good faith reasonably believes that doing so would reasonably be expected to materially impair(a) result in the loss of attorney-client privilege or rights under the attorney work product doctrine, delay (b) breach or prevent consummation of all violate any applicable Law or Legal Requirement or (c) violate any portion of the Debt Financingconfidentiality obligation with respect to such information.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or If any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that becomes unavailable (v) such offering or other incurrence than as a result of debt does not result in a breach or default underby the Company of this Agreement), or violation of, on the Debt Commitment terms and conditions (including any “flex” and “securities demand” provisions in any Fee Letter, (w) the aggregate amount of the Debt Financing committed under contemplated in the Debt Commitment Letter and related Fee Letter, Parent will promptly notify the Company in writing (but in any event within two (2) Business Days after obtaining knowledge of the occurrence or discovery thereof) and Parent and Merger Sub will use their respective reasonable best efforts to, as promptly as reasonably practicable following the occurrence of such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreementevent, (xi) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution arrange and reduction and (z) true, correct and complete copies of each material amendment or modification to obtain the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all Financing or any such portion of the Debt Financing from the same and/or or alternative financing sources so long as (A) on terms and conditions not materially less favorable in the aggregate amount of the Debt Financing, together with other cash to Parent and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth Merger Sub than those contained in the Debt Commitment Letter and related Fee Letter and (B) containing conditions to draw at Closing that would not reasonably be expected to adversely affect the availability thereof that (1) are not more onerous than those conditions and terms contained in the Debt Commitment Letter and related Fee Letter, (2) would not reasonably be expected to supplement prevent or replace materially delay the Closing or make the Closing materially less likely to occur, and (3) in an amount at least equal to the Debt Financing or such unavailable portion thereof, but in no event more than the Required Financing Amount if such amount is less, as the case may be (the “Alternative Alternate Debt Financing”). True, correct ; and complete copies of each alternative (ii) obtain one or more new debt financing commitment in letters with respect of to such Alternative Alternate Debt Financing (each, a the “New Debt Commitment LetterLetters”), together which new letters will replace the existing Debt Commitment Letter in whole or in part; provided that in no event shall the reasonable best efforts of Parent be deemed or construed to require Parent to (A) seek cash equity from any source other than those counterparty to the Equity Commitment Letter, or in any amount with all related fee letters and associated engagement letters respect to a Guarantor in excess of such Guarantor’s commitment, (solely B) pay any fees in excess of those contemplated by the case Commitment Letters, or (C) agree to economic terms of the fee letter, with only the fee amounts, pricing, Alternate Debt Financing (including any “market flex” provisions and other economic terms relating thereto) that do not adversely affect the enforceability, availability or conditionality of, or are less favorable in the aggregate amount of proceeds available under, than those contemplated by the Debt Financing contained therein redactedCommitment Letter or any related Fee Letter (after giving effect to any “flex” provisions therein), . Parent will be promptly provided provide a copy of any New Debt Commitment Letter (and any fee letter in connection therewith or other agreements related thereto (with customary redactions)) to the Company. In the event that any New Debt Commitment Letter is Letters are obtained, (iA) any reference in this Agreement to the “Debt FinancingCommitment Letters” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to or the “Debt Commitment Letter” shall will be deemed to include the Debt Commitment Letter which is to the extent not superseded by a New Debt Commitment Letter at the time in question and each any New Debt Commitment Letter Letters to the extent then in effect, ; and (iiiB) any reference in this Agreement to the “fee letterFinancing” shall be deemed to include any fee letter relating to or the “Debt Financing” means the debt financing contemplated by the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter as modified pursuant to the extent then in effectforegoing.
(e) On Subject to, and without limiting or modifying the Closing Dateprovisions of Section 8.12(b), Parent shall provide all funds required to effect and Merger Sub agree that obtaining the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are Financing is not subject to a condition regarding to Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementSub’s obligations hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Moneygram International Inc), Merger Agreement (Moneygram International Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the (or on revised terms thereof (including that do not contain any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that terms which would reasonably be expected to (x) prevent, materially delay or prevent materially impede the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedtransactions contemplated by this Agreement), that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its including using reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter, (ii) satisfy on a timely basis all conditions to the funding of the Financing set forth in the Commitment Letter, (iii) enforce the terms of the Commitment Letter and (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Biv) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable to Parent than those contained in contemplated by the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Merger Sub shall use their reasonable best efforts to enforce their may enter into or authorize any amendment, replacements, supplement or other modification of, or waive any of its material rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and without the Company’s prior consent, other than any amendment, replacement, supplement or other modification to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail waiver of any provision of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to prevent, materially impair, delay or prevent materially impede the consummation of all the Financing or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) . Parent shall use its reasonable best efforts to extend the proceeds commitment to provide the Financing in accordance with the terms of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided if it becomes necessary to ensure that the Company. If commitments under Financing is available at Closing.
(b) In the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or event any portion of the Debt Financing becomes unavailable on the terms and conditions described in or contemplated by the Commitment Letter for any reason, Parent shall, in consultation with the Company, use its reasonable best efforts to arrange to obtain, as promptly as practicable following the occurrence of such event, alternative financing from the same and/or or alternative financing sources so long as (the aggregate “Alternative Financing”) in an amount sufficient to enable Parent to fund the Merger Consideration, which Alternative Financing would not contain any provisions that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (Financing or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement. If an Alternative Financing is obtained pursuant to this Section 5.14(b), Parent shall obtain, and when obtained, provide the Company with a copy of, a new financing commitment that provides for such Alternative Financing, and thereafter the “Commitment Letter” as defined herein shall refer to such financing commitment in respect of the Alternative Financing.
(c) Parent acknowledges and agrees that obtaining the Financing is not a condition to the Closing. For the avoidance of doubt, if the Financing has not been obtained, Parent shall continue to be obligated, until such time as the Agreement is terminated in accordance with its terms and subject to the fulfillment or waiver of the condition set forth in Article VI, to complete the Merger on the terms contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Williams Companies Inc), Merger Agreement (Williams Companies Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in or contemplated by the Debt Commitment Letter pursuant and shall not agree to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, or remedy under the Debt Commitment Letter without the prior written consent of the Company if such amendmentamendments, supplement, replacement, modification modifications or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing waivers would or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay reduce the aggregate amount of the Debt Financing below the amount contemplated in the Debt Commitment Letter or prevent (y) impose new or additional conditions to the funding in full receipt of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent that, for the avoidance of doubt, Purchaser may replace or amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as entities, if the addition of such action additional parties, in the aggregate, would not reasonably be expected to prevent or materially delay or prevent impair the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability availability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations financing under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Purchaser shall keep the Company Seller Representatives reasonably informed on a current basis and in reasonable detail of the status of its Purchaser’s efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) . Without limiting the generality of the foregoing, Parent agrees to notify Purchaser shall give the Company promptly, and in Seller Representatives prompt notice: (A) of any material breach or material default (or any event within two (2or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or material default) Business Days, if at by any time prior party to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, or definitive document related to the Debt Financing of which Purchaser becomes aware; (iiB) Parent becomes aware of the receipt of any breach written notice or default (A) other written communication from any party to the Debt Commitment Letter with respect to any breach, default, termination or repudiation by any Financing Source party to the Debt Commitment Letter or any definitive document related to the Debt Financing Agreement or (B) any other party to provisions of the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected definitive document related to affect the availability of the Debt Financing or Financing; and (iiiC) a counterparty indicates in writing or orally that it if Purchaser will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on or the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating definitive documents related to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or . If any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result terms and conditions contemplated in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate Purchaser shall use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement upon terms and all conditions precedent not less favorable, taken as a whole, to funding Purchaser (in the reasonable judgment of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company thanPurchaser) the conditions precedent set forth than those in the Debt Commitment LetterLetter as promptly as practicable following the occurrence of such event but no later than the Business Day immediately prior to the Closing Date. For the avoidance of doubt, in no event shall Purchaser be required to supplement seek or replace obtain equity financing.
(b) Prior to the Closing, the Company shall use reasonable best efforts and shall cause the Company Subsidiaries to use reasonable best efforts, and shall use its reasonable best efforts to cause its respective representatives to, provide to Purchaser, at Purchaser’s sole expense and in each case without undue hardship on or interference to the Company or any Company Subsidiary, all reasonable cooperation reasonably requested by Purchaser that is necessary in connection with the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each or any alternative financing commitment arranged by Purchaser in respect of such Alternative compliance with Section 6.6(a), including:
(i) furnishing Purchaser and the Debt Financing (each, a “New sources and any alternative sources arranged by Purchaser in compliance with Section 6.6(a) all financial and other information relating to the Company and Company Subsidiaries as Purchaser shall reasonably request in order to consummate the Debt Commitment Letter”Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a), together with including, if Purchaser is to pursue equity financing by way of a public offering of its share capital, all related fee letters Company information, financial statements and associated engagement letters (solely in the case financial data of the fee lettertype required in registration statements on an applicable form by Regulation S-X and Regulation S-K under the Securities Act (subject to exceptions customary for private placements pursuant to an applicable exemption under the Securities Act) and of a type and form customarily included in private placements pursuant to an applicable exemption under the Securities Act for financings similar to the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and subject to exceptions customary for such financings (including, to the extent applicable with only respect to such financial statements, the fee amountsreport of the Company’s auditors thereon and related management discussion and analysis of financial condition and results of operations),
(ii) using reasonable best efforts to help the financing sources benefit from the existing lending relationships of the Company and the Company Subsidiaries;
(iii) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality prospective lenders and purchasers of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedor any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and senior management and representatives, with appropriate seniority and expertise, of the Company), will be promptly provided presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a);
(iv) assisting with the preparation of materials for rating agency presentations, bank information memoranda, offering documents, private placement memoranda and similar documents required in connection with the Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) (including requesting any consents of accountants for use of their reports in any materials relating to the Company. In Debt Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a) and the event delivery of one or more customary representation letters),
(v) facilitating communications by Purchaser with existing lenders of the Company and the Company Subsidiaries;
(vi) obtaining accountants’ comfort letters and legal opinions as reasonably requested by Purchaser and facilitating the pledging of collateral by Purchaser and in connection with the Debt Financing or any New Debt Commitment Letter is obtainedalternative financing arranged by Purchaser in compliance with Section 6.6(a), including, executing and delivering any documents as may be reasonably requested by Purchaser (iincluding a certificate of the financial director or another officer of similar standing of the Company with respect to solvency matters as of the Closing, on a pro forma basis);
(vii) any reference in this Agreement causing the taking of corporate actions (subject to the “occurrence of the Closing) by the Company and the Company Subsidiaries reasonably necessary to permit the completion of the Debt Financing” shall include Financing or any alternative financing arranged by Purchaser in compliance with Section 6.6(a);
(viii) facilitating the debt financing execution and delivery at the Closing of definitive documents related to the Debt Financing on the terms contemplated by the Debt Commitment Letter as modified pursuant or any alternative financing arranged by Purchaser in compliance with Section 6.6(a), and
(ix) cooperating with consultants or others engaged to clause (ii) belowundertake field examinations and appraisals, (ii) any reference including furnishing information to such persons in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question respect of accounts receivable, inventory and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectother applicable assets.
(ec) On The Company hereby consents to the reasonable use by Purchaser prior to Closing Date, Parent shall provide all funds required to effect of the repayment of all indebtedness under Company’s and the Company Credit Agreement Subsidiaries’ logos for the sole purpose of obtaining the Debt Financing or any alternative financing arranged by Purchaser in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii6.6(a), which right to use shall not be licensed or assigned by Purchaser to any third party.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Home Inns & Hotels Management Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment terms and conditions contemplated in the Financing Letter (other than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such event, an “Original Financing Failure”), Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and conditions not less favorable to Buyer than those contained in the Financing Letter and the Fee Letter and in an amount at least equal to the Financing or such unavailable portion thereof, as the case may be (the “Alternate Financing”), and to obtain a new financing commitment letter with respect to such Alternate Financing (the “New Financing Letter; ”), which shall replace the existing Financing Letter, provided that any such Alternate Financing shall not obligate any of Seller or its Affiliates as a surety, guarantor or indemnitor or to extend credit to any Person (v) such offering the terms described in this proviso “Prohibited Alternate Terms”). Buyer shall not execute a New Financing Letter or other incurrence consummate any Alternate Financing, without the written consent of debt does not result in a breach or default underSeller, or violation of, the Debt Commitment Letter, if (wi) the aggregate amount terms of the Debt New Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Alternate Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of fundingthe aggregate, equivalent to (or more less favorable to the Company thanSeller than the Financing Letter or the Financing (without giving effect to the Original Financing Failure), (ii) the terms thereof would be reasonably expected to delay or prevent the Closing or make the timely funding of the Alternate Financing or satisfaction of the conditions to obtaining the Alternate Financing less likely to occur, as compared to the Financing Letter and the Financing (without giving effect to the Original Financing Failure) or (iii) the conditions precedent to the Alternate Financing set forth in the Debt Commitment Letter, to supplement New Financing Letter would be expanded or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment modified in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.a
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Southern Union Co)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, provided that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or otherwise replace or amend the Commitment Letter so long as such action would not reasonably be expected to delay or prevent the Closing). In the event that Parent becomes aware that any portion of the Financing is unavailable in the manner or from the sources contemplated in the Commitment Letter, Parent shall promptly deliver use its reasonable best efforts to the Company true, complete and correct copies of any obtain alternative financing for such amendment, modification or replacementunavailable portion from alternative sources.
(b) The Company shall provide, shall cause the Company Subsidiaries to provide, and shall use its reasonable best efforts to cause its and their Representatives to provide, (i) such reasonable cooperation in connection with the arrangement of the Financing as may be reasonably requested by Parent, including participating in meetings, roadshows and presentations, cooperating with marketing efforts, providing information, documents, opinions and certificates, entering into agreements, and other actions that are or may be customary in connection with the Financing or necessary to permit Parent to fulfill conditions or obligations under the Commitment Letter and related fee letters and (ii) such customary information as any arranger of the Financing may reasonably request in connection with the arrangement of the Financing; provided that none of the Company or any of the Company Subsidiaries shall be required to pay any commitment or other similar fee or enter into any definitive agreement or incur any other liability in connection with the Financing; provided further that the Company, each Company Subsidiary and their respective Representatives shall be fully and unconditionally released from any agreement entered into in connection with the Financing if this Agreement is terminated.
(c) At the request of Parent, the Company shall, and shall cause its Affiliates and Representatives the Company Subsidiaries to, use its reasonable best efforts promptly take such actions in respect of (Ai) to maintain the Company Convertible Notes and (ii) the existing credit facilities of the Company and the Company Subsidiaries, in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived each case as provided directed by and in this Section 6.13), (B) to negotiate and enter into definitive agreements accordance with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are specified in writing by Parent, which actions shall not materially less favorable to Parent than those contained in be inconsistent with the Debt Commitment Letter, (C) to satisfy on a timely basis (terms of the Company Convertible Notes or obtain the waiver of)existing credit facilities, and in a manner that will not impede the ability Company shall consult with Parent before taking any action with respect to any of the parties to consummate the Mergerforegoing; provided, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence andhowever, upon satisfaction of the conditions set forth in the Debt Commitment Letterthat, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In Date, the event Company shall not be required to incur any material amount of out-of-pocket expenses as a result of actions requested by Parent under this Section 6.09 unless Parent shall have agreed to reimburse the Company for such out-of-pocket expenses; and provided, further, that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, Company shall not be required pursuant to this Section 6.09 to commit to or effect any action that is not conditioned upon funding the consummation of the Debt Financing will be, satisfied, Parent Merger and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing that would or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect expose the availability of Company to material liability or expense if the Debt Financing Merger fails to occur. All actions, notices, announcements and other documentation related to the Company Convertible Notes as well as whether the Company settles any conversion obligations with respect to the Company Convertible Notes in whole or (iii) a counterparty indicates in writing part in Company Common Stock or orally in cash shall be subject to Parent’s prior written approval, such approval not to be unreasonably withheld; provided that it will not provideParent shall instruct the Company to settle its conversion obligations in Company Common Stock or cash, or it refuses to providea combination thereof, all or any portion of within the Debt Financing time contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by indenture governing the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt FinancingConvertible Notes for settlement.
(d) All non-public or otherwise confidential information regarding either party obtained by the other party pursuant to this Section 6.09 shall be kept confidential in accordance with the Confidentiality Agreement; provided, however, that Parent and its Representatives shall have the right be permitted to substitute the net cash proceeds received by Parent after the date hereof disclose information as necessary and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together consistent with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid customary practices in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)customary confidentiality arrangements.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (SAVVIS, Inc.), Merger Agreement (Centurylink, Inc)
Financing. (a) Subject Each of Parent and Purchaser shall use, and shall cause their affiliates to the terms and conditions of this Agreementuse, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Financing Commitment, including using its reasonable best efforts (i) to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or negotiate and enter into the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions contained in the Financing Commitment (or on other terms acceptable to JPMorgan, provided such terms do not contain any conditions to funding the Merger that are not materially less favorable to Parent than those contained set forth in the Debt Financing Commitment Letterand would otherwise reasonably be expected to impair or delay the consummation of the Financing), (Cii) to satisfy on a timely basis (all other conditions applicable to Parent or obtain Purchaser, as the waiver of)case may be, and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its the control of any of Parent or subject Purchaser and (iii) to its influence andconsummate the Financing contemplated by the Financing Commitment to fund the Merger, in each case upon satisfaction the terms contemplated by this Agreement (including by taking enforcement action to cause such lender or any other persons providing such Financing to fund such Financing). In the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment LetterFinancing Commitment, to consummate without limiting the Debt Financing at or prior to rights of Parent and Purchaser under Sections 8.2(a) and 9.1(a)(iii), Parent shall promptly notify the Closing, (D) to comply with its obligations under the Debt Commitment LetterCompany, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub Purchaser shall use their reasonable best efforts to enforce obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) on terms that will still enable Purchaser to consummate the Transactions and that are not less favorable in the aggregate (as determined by Parent and Purchaser in their rights under, reasonable judgment) to them and cause the Company than those contained in the Financing SourcesCommitment. Each of Parent and Purchaser shall refrain from taking, lenders and the other persons providing directly or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on indirectly, any action that would or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability result in a failure of any of the Debt conditions contained in the Financing Commitment or (iii) a counterparty indicates in writing any definitive agreement related to the Financing. Neither Parent nor Purchaser shall agree to or orally that it will not providepermit any amendment, supplement or other modification of, or it refuses to providewaive any of their respective rights under, all any Financing Commitment or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company definitive agreements relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction Financing that would reasonably be expected to materially impair, impair or delay or prevent the consummation of all or any portion the Financing. Parent and Purchaser shall keep the Company reasonably informed of the Debt status of their efforts to obtain the Financing.
(db) Parent The Company shall have provide, shall cause the right Company Subsidiaries to substitute the net cash proceeds received by Parent after the date hereof provide and prior shall use its reasonable best efforts to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) cause its and their Representatives to provide, such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid reasonable cooperation in connection with the transactions contemplated arrangement of the Financing as may be reasonably requested by this AgreementParent and Purchaser, including (i) participation in meetings, drafting sessions, presentations, road shows and due diligence, (xii) using reasonable best efforts to furnish Parent and Purchaser and the proceeds of such debt offerings or financing sources with financial and other incurrences have been received pertinent information regarding the Company as may be reasonably requested by Parent and Purchaser to consummate the Financing, including, without limitation, all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in cashprivate placements pursuant to Rule 144A promulgated under the Securities Act, including, without limitation, (yA) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations unaudited financial statements of the Company and its consolidated Subsidiaries pursuant to Section 6.14 shall no longer as of and for the three and nine months ended September 30, 2006, (B) audited financial statements of the Company and its consolidated Subsidiaries as of and for the year ended December 31, 2006, together with the report of KPMG LLP, independent public accountants thereon, (C) unaudited financial statements of the Company and its consolidated Subsidiaries for the three months ended March 31, 2007 and for any subsequent interim period as may be reasonably requested by the financing sources and (D) all other financial statements for completed or pending acquisitions that may be required under Regulation S-X (collectively, the “Required Financial Statements”), (iii) assisting Parent and Purchaser in effect. Further, Parent shall have the right to substitute commitments in respect preparation of (A) an offering document and other financings informational and marketing materials and documents for all or any portion of the Debt Financing from and (B) materials for rating agency presentations, (iv) reasonably cooperating with the same and/or alternative marketing efforts of Parent and Purchaser and the financing sources so long as the aggregate amount for any portion of the Debt Financing, together with other cash (v) reasonably facilitating the pledging of collateral and cash equivalents available execution and delivery of definitive financing documents and customary deliverables and (vi) using reasonable best efforts to Parentobtain accountants’ comfort letters, is sufficient accountants’ consent letters, legal opinions, surveys and title insurance as reasonably requested by Parent and Purchaser; provided that none of the Company or any of the Company Subsidiaries shall be required to pay all amounts required to be paid any commitment or other fee or incur any other liability in connection with the transactions contemplated Financing prior to the Effective Time; and provided further that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and the Company Subsidiaries. Parent and Purchaser shall, promptly upon request by this Agreement the Company, reimburse the Company for all reasonable out-of-pocket costs incurred by the Company or any of the Company Subsidiaries in connection with such cooperation. Parent and Purchaser shall, on a joint and several basis, indemnify and hold harmless the Company and the Company Subsidiaries from and against any and all conditions precedent losses or damages suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith.
(c) Promptly upon the Company’s delivery to funding Parent or Purchaser of such financing areany Required Financial Statements, in respect of certainty of funding, equivalent to (or more favorable to the Company than) shall file with the conditions precedent set forth in the Debt Commitment LetterSEC on Form 10-K or Form 10-Q, to supplement as applicable, such audited financial statements or replace the Debt Financing (“Alternative Debt Financing”). Trueunaudited interim financial statements, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in as the case may be, of the fee letter, with only the fee amounts, pricing, “market flex” provisions Company and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter its consolidated Subsidiaries to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is such Required Financial Statements have not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectbeen previously so filed.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (World Air Holdings, Inc.), Merger Agreement (Global Aero Logistics Inc.)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Letter, including using commercially reasonable efforts to (A) maintain in effect the Debt Commitment Letter, (B) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing that are within their control, (C) negotiate definitive agreements with respect thereto on the terms thereof and conditions contained in the Debt Commitment Letter (including any “market flex” provisions) including using its reasonable best efforts to seek to and (D) enforce its their rights under the Debt Commitment Letter in Letter. In the event that all the conditions to the Debt Financing have been satisfied or waived, each of a breach thereof by Parent and Merger Sub shall use its commercially reasonable efforts to cause the financing provider(s) thereunderlenders providing the Debt Financing to fund the Debt Financing required to consummate the Offer on or prior to such time as Merger Sub is required to accept for payment and pay for shares of Company Common Stock validly tendered and not withdrawn pursuant to the Offer. Parent shall not, and shall not permit Merger Sub to, agree to or permit any amendment, replacement, supplement or other modification of, or waive any of its rights under, the Debt Commitment Letter or any definitive agreements related to the Debt Commitment Letter (including any and all fee letters), in each case, without the Company’s prior written consent, permit except any such amendment, supplementreplacement, replacement supplement or other modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter that amends the Debt Financing in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to prevent or materially impede or delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability consummation of the parties to consummate Offer, the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control Merger or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement. Upon any such amendment, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cashreplacement, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment supplement or modification to of the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection accordance with the preceding sentencethis Section 6.14(a), the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the term “Debt Commitment Letter” shall be deemed to include mean the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectas so amended, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Datereplaced, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full supplemented or modified in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii6.14(a).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (King Pharmaceuticals Inc), Merger Agreement (Alpharma Inc)
Financing. (a) Subject Each of Parent and Merger Sub will use, and will cause their Affiliates and their respective Representatives to the terms and conditions of this Agreementuse, Parent shall use its reasonable best efforts to take, take (or cause to be taken, ) all actions necessary, and proper in order to doobtain third party debt financing for the purpose of financing the aggregate Merger Consideration, the Company Equity Award Consideration, any repayment or cause refinancing of debt contemplated by this Agreement or required in connection with the transactions contemplated hereby (including, for the avoidance of doubt, any offers required under this Agreement to repurchase outstanding debt upon a change of control or fundamental change and conversions of the Company Convertible Notes) and any other amounts required to be done, paid in connection with the consummation of the transactions contemplated hereby and all things necessary, advisable or proper related fees and expenses of Parent and Merger Sub (the “Financing”) (it being understood that the receipt of such Financing is not a condition to arrange and obtain the Debt Financing Merger) on the terms and conditions described in the Debt Commitment Letter pursuant (taking into account the anticipated timing of the Marketing Period), including using its reasonable best efforts (i) to negotiate definitive agreements with respect thereto on the terms thereof and conditions contained in the Commitment Letter (including any “market flex” provisionsprovisions applicable thereto), and on such other terms as Parent and the Lenders shall agree, (ii) including using its reasonable best efforts to seek satisfy all conditions on a timely basis to enforce its rights under obtaining and consummating the Debt Financing applicable to (and within the control of) it set forth in such definitive agreements, and (iii) maintain in effect and comply with the Commitment Letter (including any “flex” provisions set forth in the event of a breach thereof by the financing provider(s) Commitment Letter, including as specified in any fee letter), including executing and delivering all such documents and instruments as may be reasonably required thereunder. Parent shall notgive the Company prompt notice upon becoming aware of, without the Company’s prior or receiving written consent, permit any amendment, supplement, replacement or modification to be made notice with respect to, or any waiver (x) material breach of any provision under, of the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in by a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, party thereto or (y) adversely affect unavailability, termination or ineffectiveness of any provision of the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain result in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially an amount being available less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties what is required to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingtransaction herein. Parent shall keep the Company informed on a current reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt FinancingFinancing and shall not permit any amendment or modification to be made to, andor any waiver of any provision or remedy under, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonif such amendment, (ii) Parent becomes aware of any breach modification or default waiver (A) reduces the aggregate amount of Financing below the amount that would be required to consummate the Merger and the other transactions contemplated by any Financing Source party to this Agreement (including by changing the Debt amount of fees or original issue discount contemplated by the Commitment Letter or any Debt Financing Agreement or Letter), (B) any other party amends or expands the conditions to the Debt Commitment Letter or any Debt Financing Agreement ifavailability of the Financing, in the case of this clause (B), such breach or default C) would reasonably be expected to affect prevent or delay the availability Closing or (D) would reasonably be expected to adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letter, except, in each such case, with the prior written consent of the Debt Financing or (iii) a counterparty indicates in writing or orally Company; provided, for the avoidance of doubt, that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates tobe permitted, without the prior written consent of the Company, to amend the Commitment Letter to add lenders, lead arrangers, bookrunners and syndication agents or similar entities, if the addition of such additional parties, individually or in the aggregate, would not delay the availability of the Financing. In the event that any portion of the Financing becomes unavailable on the terms and conditions (including any “flex” provisions) or from the sources contemplated in the Commitment Letter, Parent shall promptly notify the Company thereof, and Parent and Merger Sub shall use their respective reasonable best efforts to arrange and obtain as promptly as practicable following the occurrence of such event alternative debt financing (in an amount sufficient, together with the remaining Financing and any other sources available to Parent and Merger Sub, to fund the Financing) from the same or other sources (such portion from alternate sources, the “Alternate Financing”), so long as such Alternate Financing does not otherwise include terms (including any “flex” provisions) that could reasonably be expected to make the funding of such Alternate Financing in an amount less than what is required to consummate the transaction herein. Notwithstanding anything in this Agreement to the contrary, each of Parent and Merger Sub acknowledges and agrees that neither the availability nor terms of the Financing (including obtaining any required consents or waivers from any third party with respect thereto) or any Alternate Financing are conditions to the obligations of Parent and Merger Sub to consummate the Merger, and each of Parent and Merger Sub reaffirms its obligation to consummate the Merger and the other transactions contemplated by this Agreement subject only to the express conditions set forth in Article VII, irrespective and independently of the availability or terms of the Financing or any Alternate Financing, Parent’s or Merger Sub’s use of efforts in accordance with this Section 6.06(a) or otherwise.
(b) Prior to the Effective Time, the Company shall use reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to cause its Representatives to, provide all cooperation that is necessary, customary or advisable and reasonably requested by Parent to assist Parent in the arrangement, obtainment and syndication of the Financing; provided, however, that nothing herein shall require such cooperation to the extent it would (A) unreasonably disrupt the conduct of the business or operations of the Company or its Subsidiaries (in the reasonable judgment of the Company), (B) require the Company or any of its Subsidiaries to agree to pay any fees, reimburse any expenses or otherwise incur any liability or give any indemnities prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified or (C) require the Company or any of its Subsidiaries to take any action or enter into any transaction that would reasonably be expected to materially impairconflict with, delay or prevent consummation result in any violation or breach of, or default (with or without notice or lapse of all time, or both) under, the Company Charter, the Company By-laws, any Applicable Laws, the Credit Agreement or any portion Material Contract. Such cooperation shall include, without limitation, (i) participating in a reasonable number of meetings, presentations and due diligence sessions and sessions with potential lenders, investors and meetings with ratings agency, (ii) providing reasonable and timely assistance with the Debt preparation of customary materials for presentations, offering memoranda, prospectuses and similar documents required in connection with the arranging, obtaining and syndication of Financing (including requesting the Consent of any accountant’s use of their materials in connection with the Financing.
), (diii) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof as promptly as reasonably practicable, and in any event at least 18 Business Days prior to the Closing from consummated offerings or Date, furnishing Parent and its financing sources with all available financial and other incurrences information pertinent to the Company and its Subsidiaries including delivery of debt (including notesx) by Parent unaudited consolidated balance sheets and related statements of operations and comprehensive income and cash flows for all or any portion the Company for the fiscal quarter ended June 30, 2013 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least 45 days before the Closing Date, (y) (in the event that the Closing Date occurs on a date that is more than 90 days following December 31, 2013) audited consolidated balance sheets and related consolidated statements of operations and comprehensive income, stockholders’ equity and cash flows for the fiscal year ended December 31, 2013, in each case prepared in accordance with GAAP and (z) without duplication of the Debt Financing foregoing clauses (x) and (y), the information and documents relating to the Company required by reducing commitments under paragraphs 9 and 10 of Exhibit E to the Debt Commitment Letter; provided that Letter (such information in the foregoing clauses (x), (y) and (z), the “Required Information”), (iv) providing unaudited consolidated balance sheets and related statements of operations and comprehensive income and cash flows for the Company, (v) such having the Company designate members of senior management of the Company to execute customary authorization letters with respect to bank information memoranda, offering memoranda or other incurrence of debt does not result materials provided to prospective lenders or investors and participate in a breach or default underreasonable number of presentations, or violation ofroad shows, the Debt Commitment Letterdue diligence sessions, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together drafting sessions and sessions with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid ratings agencies in connection with the transactions contemplated by this AgreementFinancing, (x) the proceeds of including reasonable direct contact between such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations senior management of the Company and its Subsidiaries pursuant and the potential lenders in the Financing, (vi) assisting Parent in obtaining any corporate credit and family ratings from any ratings agencies contemplated by the Commitment Letter, (vii) requesting the Company’s independent auditors to Section 6.14 shall no longer cooperate with Parent’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from the Company’s independent auditors, (viii) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents and customary closing certificates as may be required by the Financing and other customary documents as may be reasonably requested by Parent, (ix) facilitating the pledging of collateral for the Financing, (x) assisting the Financing sources in effect. Further, Parent shall have benefiting from the right to substitute commitments in respect of other financings for all or any portion existing lending relationships of the Debt Financing Company and its Subsidiaries, (xi) requesting from the same and/or alternative financing sources so long Company’s existing lenders such customary documents in connection with refinancings as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid requested by Parent in connection with the transactions Financing and collateral arrangements, including customary payoff letters (in form and substance reasonably satisfactory to Parent), lien releases (including UCC-3 termination statements), instruments of termination or discharge, (xii) furnishing Parent and the Lenders with all documentation and other information required by Governmental Entities with respect to the Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended), and (xiii) otherwise cooperating with Parent, and taking all other corporate actions, the effectiveness of which shall be subject to the occurrence of the Effective Time, reasonably requested by Parent reasonably necessary to permit the consummation of the Financing. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable costs and expenses (including reasonable attorneys’ fees, but excluding for the avoidance of doubt, the costs of the Company’s preparation of its annual and quarterly financial statements) incurred by the Company or any of its Subsidiaries or their respective Representatives in connection with the Financing, including the cooperation of the Company and its Subsidiaries and Representatives contemplated by this Agreement Section 6.06, and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing, the use of proceeds thereof and any information used in connection therewith, except with respect to funding of any fraud or intentional misrepresentation or willful misconduct by any such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent persons. The expense reimbursement and indemnification obligations set forth in this Section 6.06(b) shall survive the Debt Commitment Letter, to supplement or replace the Debt Financing Closing and any termination of this Agreement.
(“Alternative Debt Financing”). True, correct and complete copies c) For purposes of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available underthis Section 6.06, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the term “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall also be deemed to include any fee Alternate Financing (and any debt securities issued in lieu of any committed bridge facilities) and the term “Commitment Letter” shall also be deemed to include any commitment letter relating (or similar agreement) with respect to such Alternate Financing. All non-public or otherwise confidential information regarding either party obtained by the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter other party pursuant to the extent then in effect.
(e) On the Closing Date, Parent this Section 6.06 shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full be kept confidential in accordance with the Company Credit Confidentiality Agreement; provided, however, that Parent and its Representatives shall be permitted to disclose information as necessary and consistent with customary practices in connection with the Financing subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything confidentiality arrangements satisfactory to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this AgreementCompany.
Appears in 2 contracts
Samples: Merger Agreement (Community Health Systems Inc), Merger Agreement (Health Management Associates, Inc)
Financing. (a) Subject to the terms and conditions of this AgreementSection 6.11(d), Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, done all things reasonably necessary, proper or advisable or proper to arrange and obtain the Debt Bridge Financing (or the Permanent Financing in lieu thereof) on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any the related “market flex” provisions) ), including using its reasonable best efforts to seek to enforce its rights and exercise any remedies under the Debt Commitment Letter.
(b) Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s efforts to obtain the Financing and shall give the Company prompt notice of any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material adverse impact on any portion of the Financing necessary for the satisfaction of all of Parent’s obligations under this Agreement.
(c) Parent may amend, modify, replace, terminate, assign or agree to any waiver or reduction of commitments under, the Commitment Letter and/or substitute commitments under the Commitment Letter with commitments or proceeds in respect of any Permanent Financing, in each case without the event prior written approval of a breach thereof by the financing provider(s) thereunder. Company; provided, that Parent shall not, without the Company’s prior written consent, permit any such amendment, supplementreplacement, replacement modification, assignment, termination, waiver, reduction or modification substitution to be made tomade, or consent to any waiver of any provision under, of or remedy under the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver which would (Ai) reduces reduce the aggregate amount cash amounts of the cash proceeds from Financing to an aggregate amount less than the Debt Financing or amount necessary for the representation in Section 5.06(e) to be true at the time of any such change, (Bii) imposes impose new or additional conditions to the initial funding of the Financing or otherwise expands expand, amend, modify or waive any of the conditions to under the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in each case from those set forth in the Commitment Letter on the date hereof in a manner that would reasonably be expected to (xA) materially delay or prevent the Closing or (B) make the funding in full of any portion of the Debt Financing (or satisfaction of necessary to consummate the conditions transactions contemplated by this Agreement less likely to the Debt Financing) on the Closing Date, occur or (yiii) otherwise adversely affect the ability of Parent to enforce its rights against other parties to under the Debt Commitment Letter or consummate the definitive agreements with respect thereto (providedtransactions contemplated by this Agreement. Notwithstanding the foregoing, that Parent may modify, supplement or amend the Debt Commitment Letter to (1) add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long that have not executed the Commitment Letter as of the date of this Agreement and (2) implement or exercise any “market flex” provisions contained in any related fee letters. In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter permitted pursuant to this Section 6.11, such action would not reasonably new commitment letters shall be expected deemed to delay or prevent be the Closing“Commitment Letter” for all purposes of this Agreement (other than with respect to representations in this Agreement made by Parent that speak only as of the dates hereof). Parent shall promptly deliver to the Company true, complete and correct copies of any such termination, amendment, modification modification, waiver or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect replacement of the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have give the right to substitute the net cash proceeds received by Company prompt written notice if and when Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for becomes aware that all or any portion of the Debt Bridge Financing contemplated by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or Letter will not be available other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount than as contemplated by Section 6.11(c). If any portion of the Debt Bridge Financing committed under becomes unavailable on the Debt terms and conditions contemplated in the Commitment Letter following (other than as contemplated by the Commitment Letter and any “market flex” provisions in any related fee letters) and such reduction, together with other cash and cash equivalents available portion is necessary to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, Parent shall use reasonable best efforts to arrange to obtain in replacement thereof alternative financing, including from alternative sources, in an amount sufficient, when added to the portion of the Bridge Financing that is available and any cash of Parent and its Subsidiaries on hand at the Closing Date (x) including the proceeds of such debt offerings or other incurrences have been received by Parent in cashany Permanent Financing), (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing agreement (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect ) as promptly as practicable following the occurrence of such event; provided, that Parent shall not be obligated to seek or obtain Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters on terms and associated engagement letters (solely conditions materially less favorable to Parent in the case of aggregate than the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Bridge Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement Letter. All references to the “Debt Commitment Letter” Bridge Financing shall be deemed to include such Alternative Financing and all references to the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at shall include the time in question and each New Debt Commitment Letter to applicable documents for the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectAlternative Financing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (General Mills Inc)
Financing. (a) Subject to Purchaser and Parent shall, and shall cause Borrower (as defined in the terms and conditions of this AgreementDebt Commitment Letter) to, Parent shall use its their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessarynecessary to arrange, advisable or proper to arrange consummate and obtain the proceeds of the Debt Financing on the terms and conditions described not less favorable than those set forth in the Debt Commitment Letter pursuant on or prior to the terms thereof Closing Date (including any “market flex” provisions) including using its but not limited to reasonable best efforts to seek to enforce its rights under (i) maintain in effect the Debt Commitment Letter Letter, (ii) satisfy on a timely basis all conditions to the Debt Financing that are within Parent’s, Purchaser’s and Borrower’s control, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing, and (iv) in the event that the Offer Conditions and the conditions set forth in Section 7 have been satisfied or, upon funding, would be satisfied or waived, draw an amount of a breach thereof by the financing provider(s) thereunderDebt Financing which, together with the cash on hand of Parent and Purchaser and the net proceeds of any offering of debt securities, is sufficient to enable Parent and Purchaser to fund the cash payments required to consummate the Transactions). None of Parent or Purchaser shall (and Parent shall notcause Borrower not to), without the Company’s prior written consent, permit any amendmentamend, supplementmodify, replacement replace, terminate or modification agree to be made to, or any waiver of any provision under, under the Debt Commitment Letter if such amendment, supplementmodification, replacement, modification termination or waiver (Ai) reduces the aggregate amount of the Debt Financing to an amount that, together with Parent’s and Purchaser’s cash on hand and the net proceeds from of any offering of debt securities, would be less than an amount that would be required to fund the cash payments required to consummate the Transactions or (ii) changes the conditions to obtaining the Debt Financing or (B) imposes adds new or additional conditions precedent to the initial funding or otherwise expands any of the conditions to the receipt of obtaining the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that if such change would reasonably be expected to (xA) materially delay or prevent the Closing, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) Financing on the Closing Date, ) materially less likely to occur or (yC) materially adversely affect impact the ability of Parent the Borrower to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (thereto; provided, that however, that, for the avoidance of doubt, Parent may cause the Borrower to (1) amend or replace the Debt Commitment Letter or the Debt Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents agents, managers or similar entities so long as such action would who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause of the Agreement Date and (ii2) below, (ii) implement or exercise any reference “flex” provisions provided in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Fee Letter which is not superseded by a New Debt Commitment Letter at the time as in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.on the
Appears in 1 contract
Samples: Merger Agreement (Viela Bio, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, necessary or advisable or proper to arrange and obtain the Debt Financing as promptly as practicable following the date of this Agreement (but taking into account the Marketing Period) and to consummate the Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Closing Date, including using its reasonable best efforts with respect to seek to enforce its rights under the Debt following:
(i) maintaining in effect the Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit Letters and not permitting any amendment, supplement, replacement amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, and not replacing, the Debt Commitment Letter Letters, if such amendment, supplementmodification, waiver or replacement, modification or waiver : (A) reduces the aggregate amount of the cash proceeds from Financing (including by changing the amount of fees to be paid in respect of the Debt Financing or original issue discount in respect of the Debt Financing), (B) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, (C) prevents or otherwise expandsmaterially delays the Closing, amends or modifies any other provision (D) makes the funding of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yE) adversely affect impacts the ability of Parent to enforce its rights against other parties to the Debt applicable Commitment Letter or the definitive agreements with respect thereto (provided, that (x) Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would who had not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect executed the Debt Commitment Letter as of the date hereof and (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (By) to negotiate and enter into definitive agreements with respect Parent shall disclose to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable Company promptly its intention to Parent than those contained in amend, modify, waive or replace the Debt Commitment Letter, shall keep the Company reasonably apprised of the status and proposed terms and conditions thereof, and shall promptly furnish to the Company copies of any agreements or other documentation with respect to such amendment, modification, waiver or replacement);
(Cii) causing the Equity Financing to satisfy be consummated upon satisfaction of the conditions contained in the Equity Commitment Letter;
(iii) satisfying (or seeking a waiver of) on a timely basis (or obtain taking into account the waiver of), and in a manner that will not impede the ability timing of the parties to consummate the Merger, Marketing Period) all conditions to receipt of the full amount of the Debt Financing at and the Closing set forth therein Equity Financing that are within its control or subject to its influence andinfluence;
(iv) negotiating, upon satisfaction of executing and delivering the conditions set forth in the Debt Commitment Letter, to consummate the definitive Debt Financing at or prior to Documents that reflect the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth terms contained in the Debt Commitment Letter have been or(including any “market flex” provisions related thereto) or on such other terms acceptable to Parent and the Financing Sources (but such other terms to be subject to the limitations on any amendment, modification, waiver or replacement of a Commitment Letter as set forth in Section 5.10(a)(i)) and providing copies thereof exchanged with the Financing Sources to the Company upon funding any reasonable request;
(v) enforcing its rights under the Commitment Letters in the event of a Financing Failure Event; and
(vi) timely prepare, with the assistance of the Company and the applicable Financing Sources, the marketing materials with respect to the Debt Financing will be(including with respect to timing, satisfied, Parent taking into account the expected timing of the Marketing Period) and Sub shall use their reasonable best efforts to enforce their rights under, and cause commence the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under syndication and/or marketing activities contemplated by the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Letter.
(b) Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing. Parent shall give the Company prompt notice of (i) any material breach or repudiation, andor any such written threatened breach or repudiation, promptly following request by the Company, provide any party to the Company copies Commitment Letters of all executed Debt Financing Agreementswhich Parent or its affiliates obtains Knowledge and (ii) receipt of any written notice or other written communication to Parent from any party to the Commitment Letters with respect to any actual or threatened breach, default (or any accusation of breach or default), termination or repudiation by any party to the Commitment Letters; provided, however, that in no event will Parent be under any obligation to disclose any information pursuant to clauses (i) or (ii) that is subject to attorney-client or similar privilege if Parent shall have used its reasonable best efforts to disclose such information in a way that would not waive such privilege.
(c) Without limiting In the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide (including any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent related “market flex” terms) regardless of the Companyreason therefor, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
including in connection with a Financing Failure Event (d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior but other than due to the Closing from consummated offerings or other incurrences failure of debt (including notes) by Parent for all or any portion a condition to the consummation of the Debt Financing by reducing commitments under resulting from a material breach of any representation, warranty, covenant or agreement of the Debt Commitment Letter; provided that Company set forth in this Agreement and as a result of which alternative financing sources are not otherwise then available), Parent shall, as promptly as practicable, (vi) notify the Company of such offering or other incurrence unavailability and, to the Knowledge of debt does not result in a breach or default under, or violation ofParent, the reasons therefor, and (ii) use its reasonable best efforts to obtain alternative financing (“Alternative Debt Commitment LetterFinancing”) on terms and conditions no less favorable, in the aggregate, to Parent (was determined in the reasonable judgment of Parent) the aggregate amount of the Debt Financing committed under than those set forth in the Debt Commitment Letter following (including any related “market flex” terms) in an amount, when added to the portion of the Financing being replaced that is still available, such reduction, together with other cash and cash equivalents that the aggregate funds available to Parent, is Parent at Closing will be sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution Closing Payments and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with otherwise consummate the transactions contemplated by this Agreement and all conditions precedent to funding as promptly as practicable following the occurrence of such financing areevent and, in respect of certainty of fundingwhen obtained, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect provide a copy of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Companycommitment. In the event any New that Parent obtains Alternative Debt Commitment Letter is obtainedFinancing pursuant to this Section 5.10(c), (i) any reference in this Agreement references to the “Debt Financing,” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to “Financing,” the “Debt Commitment Letter” and the “Commitment Letters” (and other like terms in this Agreement) shall be deemed to include the be modified to refer to such Alternative Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, as promptly as practicable, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the Closing Date on the terms and conditions described set forth in the Debt Commitment Letter pursuant to Financing Commitments. In the terms thereof (including any “market flex” provisions) including using its event that all conditions set forth in the Financing Commitments have been satisfied, Parent, LLC Sub and Merger Sub shall use their reasonable best efforts to seek cause the lenders party thereto and the other Persons providing such Financing to enforce its rights under fund the Debt Commitment Letter Financing required to consummate the transactions contemplated by this Agreement on the Closing Date. Parent, LLC Sub and Merger Sub may replace or amend the Financing Commitments; provided, that such replacement or amendment would not (i) impose new or additional material conditions, or otherwise expand any conditions in any material respects, to the event receipt of a breach thereof by the financing provider(sFinancing, (ii) thereunder. Parent shall notreasonably be expected to prevent, or materially delay or impair, the availability of the Financing or (iii) adversely impact the ability of Parent, LLC Sub and/or Merger Sub to timely consummate the Merger; provided, however, that Parent, LLC Sub and/or Merger Sub may, without the Company’s prior written consentapproval of Galaxy, permit any amendment, supplement, replacement or modification to be made to, or any waiver the reduction of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds Financing Commitments if Parent, LLC Sub and/or Merger Sub also obtains from alternative sources commitments in the Debt Financing or (B) imposes new or additional aggregate amount of at least such reduction with terms and conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financingthat will not, or otherwise expandstaken as a whole, amends or modifies any other provision of the Debt Commitment Letter result in a manner decrease in the likelihood that would reasonably such commitments from alternative sources will be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) available on the Closing Date. For purposes of this Section 5.6, references to “Financing” shall include the financing contemplated by the Financing Commitments as replaced, amended or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shallmodified, and references to “Financing Commitments” shall cause its Affiliates include such documents as replaced, amended or modified. Without limiting the generality of the foregoing and Representatives tosubject to replacements or amendments permitted hereby, Parent, LLC Sub and Merger Sub shall use its their reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter (provided that Financing Commitments until the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in transactions contemplated by this Section 6.13)Agreement are consummated, (Bii) satisfy all conditions and covenants applicable to negotiate Parent, LLC Sub and Merger Sub in the Financing Commitments at or prior to Closing and otherwise comply with its obligations thereunder, (iii) enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in contemplated by the Debt Commitment Letter, Financing Commitments and (Civ) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, . If any portion of the Financing becomes unavailable on the terms and conditions (Dincluding the flex provisions) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth contemplated in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfiedCommitments, Parent and Sub shall use their its reasonable best efforts to enforce their rights underarrange and obtain alternative financing from alternative sources, and cause in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event. Parent shall provide Galaxy with prompt written notice of any material breach by any party to the Financing Sources, lenders Commitments (or commitments for any alternative financing obtained in accordance with this Section 5.6) of which Parent becomes aware or any termination of a Financing Commitment (or commitment for any alternative financing obtained in accordance with this Section 5.6) and provide to Galaxy copies of all material documents related to the other persons providing Financing (or committing to provide the Debt Financing to comply alternative financing obtained in connection with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingthis Section 5.6). Parent shall keep the Company Galaxy informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide Financing (or alternative financing obtained in accordance with this Section 5.6). Notwithstanding anything to the Company copies contrary contained in this Agreement, the Stockholder Representative and Galaxy acknowledge and agree that they (i) derive no contractual rights, whether as third party beneficiary or otherwise, under the Financing Commitments or any financing document related to the Financing and shall not be entitled to enforce any such Financing Commitment or document against any agent, arranger, bookrunner, lender, letter of all executed Debt credit issuer or other financing party that is a party to any such commitment letter or document (including, without limitation, GSO Capital Partners LP, Bank of America, N.A. and their respective affiliates) (collectively, the “Lender Group”) and (ii) waive any claim (including, without limitation, any claim under contract, any claim in tort and any claim for specific performance) it may have against any member of the Lender Group with respect to the failure of the Financing Agreementsto close; provided, that nothing contained in this sentence shall prevent the Stockholder Representative and/or Galaxy from enforcing any of the terms of this Agreement against the Parent, LLC Sub and Merger Sub.
(cb) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior Prior to the Closing Date Closing, Galaxy shall use reasonable best efforts to provide to Parent and Merger Sub, at Parent’s request (with reasonable prior notice) and sole cost and expense, all cooperation reasonably requested by Parent in connection with the Financing, including by using reasonable best efforts in (i) furnishing Parent and Merger Sub and their lenders the Debt Commitment Letter is terminated for any reasonfinancial statements required under the Financing Commitments (the “Required Financial Information”), (ii) Parent becomes aware causing executive officers and representatives of any breach Galaxy to participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or default (A) by any agents for, and prospective lenders and purchasers of, the Financing Source party to and the Debt Commitment Letter or any Debt Financing Agreement or (B) any executive officers of Galaxy and other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case members of this clause (Bsenior management and representatives of Galaxy), such breach or default would reasonably be expected to affect presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the availability of the Debt Financing or Financing, (iii) a counterparty indicates assisting Parent and its lenders in writing or orally that it will not providethe preparation of customary offering memoranda, or it refuses to providebank information memoranda, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company rating agency presentations, lender presentations and similar documents relating to any circumstances referred to in this Section 6.13(c). the Financing, (iv) providing reasonable cooperation with the marketing efforts of Parent shall not, nor shall it permit any of and its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent lenders for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that Financing, (v) such offering or other incurrence providing customary authorization letters authorizing the distribution of debt does not result in a breach or default under, or violation of, the Debt Commitment Letterinformation to prospective lenders, (wvi) providing all relevant information reasonably requested with respect to the aggregate amount assets of Galaxy and its Subsidiaries that will serve as collateral for the Debt Financing committed and providing reasonable access to Parent and its lenders, during normal working hours and upon reasonable notice, to allow them to conduct audit examinations and appraisals with respect to such collateral, (vii) seeking to cause its auditors to provide reasonable assistance to Parent consistent with their customary practice (including to provide and consent to the use of their audit reports relating to the consolidated financial statements of Galaxy and its Subsidiaries), (viii) providing all documentation and other information required by regulatory authorities with respect to Galaxy and its Subsidiaries under applicable “know your customer” and anti-money laundering rules and regulations, including the Debt USA PATRIOT Act of 2001, as amended, (ix) seeking to arrange for customary payoff letters, lien terminations and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all Indebtedness contemplated by the Financing Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreementoff, discharged and terminated at Closing, and (x) providing all cooperation that is reasonable and customary to satisfy the proceeds conditions precedent to the Financing Commitments or any financing documents relating thereto to the extent the satisfaction of such debt offerings conditions requires the reasonable and customary cooperation of, or other incurrences have been received by Parent is within the control of, Galaxy and its Subsidiaries; provided, however, that, irrespective of the above, (A) no obligation of Galaxy or any of its Subsidiaries under any certificate, document or instrument shall be effective until the First Effective Time; (B) no Person that is a director of Galaxy or any of its Subsidiaries shall be required to take any action in cashsuch capacity with respect to the Financing (or alternative financing sought in accordance with this Section 5.6) prior to the Closing, and (C) neither Galaxy nor any of its Subsidiaries shall be required to provide any such assistance to the extent it (x) materially and unreasonably interferes with its business operations or (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification causes any condition to the Debt Commitment Letter relating thereto will Closing to fail to be promptly provided to satisfied. For the Company. If commitments under avoidance of doubt, if the Debt Commitment Letter have Financing (or alternative financing sought in accordance with this Section 5.6) has not been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Furtherobtained, Parent and Merger Sub shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required continue to be paid in connection with obligated to consummate the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable subject only to the Company than) satisfaction or waiver of the applicable conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectArticle VII.
(ec) On the Closing Date, Parent shall provide all funds required to effect the repayment None of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s Galaxy or any of its AffiliatesSubsidiaries shall be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment in connection with the Financing prior to the First Effective Time. Parent shall indemnify and hold harmless Galaxy and its Subsidiaries from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred in connection with the arrangement of Financing and any information utilized in connection therewith (other than historical information relating to Galaxy or its Subsidiaries provided by Galaxy in writing specifically for use in the Financing offering documents). Galaxy hereby consents to the use of its and its Subsidiaries’ obtaining funds logos in connection with the Financing; provided, that such logos are used in a manner that is not intended or reasonably likely to consummate harm or disparage Galaxy, any of its Subsidiaries or their marks, or the Merger and the transactions contemplated by this Agreementreputation or goodwill of Galaxy or any of its Subsidiaries.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions obtain and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain effectuate the Debt financing contemplated by the Financing Commitments on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject therein, except that, in addition thereto, it may also seek funding which it reasonably believes is more advantageous to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeParent. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptlypromptly if, and in any event within two (2) Business Days, if at any time prior to the Closing Date Effective Time, (i) the Debt Commitment Letter is Financing Commitments expire or are terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source financing source that is a party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party Commitments notifies Parent that such source no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected provide financing to affect the availability of the Debt Financing Parent or (iii) a counterparty indicates for any reason Parent no longer believes in writing or orally good faith that it will not provide, or it refuses be able to provide, all or obtain at Closing any portion of the Debt Financing financing as necessary to consummate the transactions contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c)Agreement. Parent shall not, nor and shall it not permit any of its Affiliates subsidiaries to, without the prior written consent of the Company, take any action or enter into any transaction material transaction, including, without limitation, any merger, acquisition, joint venture, disposition or debt or equity financing that would is reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) financing contemplated by the Financing Commitments. Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings not amend or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underalter, or violation ofagree to amend or alter, the Debt Commitment LetterFinancing Commitments in any manner that is reasonably expected to impair, (w) delay or prevent the aggregate amount Merger without the prior written consent of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with Closing has not occurred on or before the preceding sentence, the obligations termination date of the Company Financing Commitments and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Furtherthis Agreement has not been properly terminated, Parent shall have and Merger Sub will use commercially reasonable efforts to obtain, and if obtained will provide the right to substitute commitments in respect of other financings for all or any portion Company with a copy of, either an extension of the Debt Financing from Commitments or a new financing commitment that, in either case, provides for at least the same and/or alternative amount of financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to Financing Commitments as originally issued on terms (including funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company thanconditions) the conditions precedent set forth not less beneficial in the Debt Commitment Letter, aggregate to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely Parent compared to those included in the case of the fee letterFinancing Commitments as originally issued, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability any such extension or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” new commitment shall include a termination date not earlier than the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectWalk-Away Date.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Proquest Co)
Financing. Grizzly shall not agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Spinco Commitment Letter and the Spinco Related Letter without the prior written consent of Burgundy (a) Subject and, to the terms extent Section 8.3 is applicable, such consent is subject to Burgundy’s obligations in Section 8.3), if such amendments, modifications or waivers would reasonably be expected to (i) reduce the aggregate amount of the Spinco Financing below the Below Basis Amount, (ii) impose new or additional conditions to the receipt of the Spinco Financing that would reasonably be expected to (A) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially delay the consummation of the transactions contemplated by this Agreement and conditions the other Transaction Agreements, or (C) materially adversely impact the ability of Grizzly to enforce its rights against the other parties to the Spinco Commitment Letter (provided that for the avoidance of doubt, Grizzly may, without the consent of Burgundy, replace or amend the Spinco Commitment Letter and the Spinco Related Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties, individually or in the aggregate, would not reasonably be expected to prevent or materially delay or impair the availability of financing under the Spinco Commitment Letter and the Spinco Related Letter, obtaining from the IRS the Private Letter Ruling (including the IRS D Reorganization Ruling and the IRS Debt Exchange Ruling) or the consummation of the transactions contemplated by this Agreement, Parent Agreement and the other Transaction Agreements) or (iii) prevent or materially delay obtaining from the IRS the Private Letter Ruling (including the IRS D Reorganization Ruling and the IRS Debt Exchange Ruling). Grizzly and Merger Sub shall each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Spinco Financing on the terms and conditions described in or contemplated by the Debt Spinco Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) Spinco Related Letter, including using its reasonable best efforts to seek to enforce its rights under (1) maintain in effect the Debt Spinco Commitment Letter and the Spinco Related Letter, (2) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) all conditions and covenants applicable to Grizzly in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Spinco Commitment Letter if such amendmentand the Spinco Related Letter and otherwise comply with its obligations thereunder, supplement, replacement, modification or waiver (A3) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on enter into definitive agreements substantially concurrently with the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Spinco Debt Financing Agreements”) on the terms and conditions that are not materially contemplated by the Spinco Commitment Letter and the Spinco Related Letter (or terms and conditions (including the flex provisions) no less favorable to Parent than those contained Grizzly and Spinco (in the Debt reasonable discretion of Grizzly) than the terms and conditions in the Spinco Commitment Letter and the Spinco Related Letter), (C4) to satisfy on a timely basis (or obtain in the waiver of)event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Spinco Financing at or prior to the Closing, (D5) to comply with enforce its obligations rights under the Debt Spinco Commitment Letter, Letter and the Spinco Related Letter and (E6) to consummate the Debt Financing at or prior to the Effective Time. In in the event that all conditions precedent expressly set forth in the Debt Spinco Commitment Letter and the Spinco Related Letter have been orsatisfied, upon funding cause the lenders providing the Spinco Financing to fund the Spinco Financing. Grizzly shall (x) furnish to Burgundy complete, correct and executed copies of the Spinco Debt Financing will beAgreements, satisfied(y) give Burgundy prompt notice of any material breach by any party of the Spinco Commitment Letter or the Spinco Related Letter or the Spinco Debt Financing Agreements of which Grizzly becomes aware or any termination thereof and (z) upon Burgundy’s request, Parent otherwise keep Burgundy reasonably informed of the status of Grizzly’s efforts to arrange the Spinco Financing (or any replacement thereof) and Sub the other financing transactions contemplated by this Agreement (or any replacement thereof). If any portion of the Spinco Financing becomes unavailable on the terms and conditions contemplated in the Spinco Commitment Letter and the Spinco Related Letter (including the flex provisions) from sources contemplated in the Spinco Commitment Letter and the Spinco Related Letter, Grizzly and Spinco shall use their reasonable best efforts to enforce their rights underarrange and obtain alternative debt financing from alternative debt sources for the same purposes as the purposes of the Spinco Financing in an amount not less than the Below Basis Amount upon terms and conditions not less favorable, taken as a whole, to Grizzly and cause Spinco (in the Financing Sources, lenders and reasonable discretion of Grizzly) than those in the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Spinco Commitment Letter and definitive financing agreements and to fund on or before the Effective Time Spinco Related Letter as promptly as practicable following the Debt Financing. Parent shall keep the Company informed on a current basis and in occurrence of such event, including using reasonable detail of the status of its best efforts to arrange the Debt Financingenter into definitive agreements with respect thereto. Further, andGrizzly may, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without with the prior written consent of Burgundy (which consent shall not be unreasonably withheld, conditioned or delayed), if it so determines in its discretion, arrange for alternative financing for the CompanySpinco Financing from a third party or parties (and, take any action in such instance, references herein to the “Spinco Commitment Letter” shall mean and include the written commitment of such third party or enter into any transaction parties in respect thereof), if such alternative financing does not (i) reduce the aggregate amount of the Spinco Financing below the Below Basis Amount, (ii) impose new or additional conditions to the receipt of the Spinco Financing that would reasonably be expected to (A) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially impair, delay or prevent the consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality ofTransaction Agreements, or (C) materially adversely impact the aggregate amount ability of proceeds available underGrizzly to enforce its rights against the other parties thereto, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.or
Appears in 1 contract
Financing. (a) Subject Parent and Acquisition Sub shall use their reasonable best efforts to obtain the Financing as set forth in the Financing Letters; provided, however, that notwithstanding anything in this Agreement to the terms contrary, Parent and conditions Acquisition Sub shall be entitled to obtain, in their sole discretion, substitute debt financing in place of this Agreementsome or all of the Financing provided under the Real Estate Debt Letter or one or both of the Senior Debt Letters ("Substitute Debt Financing") with one or more other nationally recognized financial institutions if, and only if, such Substitute Debt Financing would not (i) delay the consummation of the Merger past November 1, 2005 and (ii) prevent the delivery of the solvency letter contemplated by Section 5.13.
(b) Parent shall provide prompt written notice to the Company of (i) Marathon's or Eugster's refusal or stated intent to refuse to provide the financing described in the Equity Commitment Letter and (ii) the Lenders' refusal or stated intent to refuse to provide the financing described in the Real Estate Debt Letter or any of the Senior Debt Letters, and/or any other lender's stated intent to refuse to provide the financing contemplated by any Substitute Debt Financing, and, in each case, the stated reasons therefor. In any such event, Parent shall use its reasonable best efforts to takeobtain alternative financing as promptly as practicable in an amount at least equal to the Required Cash Amount (it being understood that such reasonable best efforts would not require Parent to obtain financing that is, (x) with respect to the economic terms thereof, on terms less favorable to Parent thereunder than those set forth in the Financing Letters or the financing arrangements relating thereto, as the case may be, or cause (y) with respect to be takenthe non-economic terms thereof, all actions and on terms that are not substantially similar to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described those set forth in the Debt Commitment Letter pursuant Financing Letters or the financing arrangements relating thereto, as the case may be).
(c) From the date of this Agreement until the Effective Time, the Company agrees to the terms thereof (including any “market flex” provisions) including using provide, and shall cause its Subsidiaries to provide, and will use its reasonable best efforts to seek cause their respective Representatives to enforce its rights under provide, all cooperation reasonably requested by Parent in connection with the Debt Commitment Letter in arrangement of, and the event negotiation of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts the Financing (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amendedand any substitutions, supplemented, replaced, modified replacements or waived as provided in this Section 6.13refinancing thereof), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their including using reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) cause appropriate officers and employees to be available, on a customary basis and upon reasonable notice, to meet with prospective lenders and investors in presentations, meetings, road shows and due diligence sessions each conducted at the Debt Commitment Letter is terminated for any reasonexpense of Parent, (ii) Parent becomes aware assist with the preparation of disclosure documents in connection therewith, (iii) execute and deliver any breach pledge and security documents or default other definitive financing documents as may be reasonably requested by Parent, (iv) direct (A) by any Financing Source party its independent accountants and counsel to provide reasonable assistance to Parent, including requesting that such accountants provide consent to Parent to use their audit reports and SAS 100 reviews relating to the Debt Commitment Letter or Company and its Subsidiaries and, at the expense of Parent, to provide any Debt necessary "comfort letters" in connection with the Financing Agreement or and (B) appropriate officers to sign any customary management representation letters to its independent accountants and (v) solicit and cause to be delivered such certificates, affidavits and instruments (including affidavits of title, survey affidavits, estoppel certificates and lien waivers), legal opinions and other party to the Debt Commitment Letter or any Debt Financing Agreement ifdocuments, in the case of this clause (B)each case, such breach or default would reasonably as may be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by Parent or reasonably required by any Lender or title insurance company and, in each case, at the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any expense of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt FinancingParent.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underIn addition, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with obtaining the transactions contemplated by this AgreementFinancing, (x) the proceeds of at such debt offerings or other incurrences have been received time as requested by Parent in cashand Acquisition Sub, (y) Parent promptly notifies the Company shall (i) commence a cash tender offer (the "Debt Offer") to purchase any and all of such substitution and reduction the Senior Notes and (zii) true, correct and complete copies solicit the consent of each material amendment or modification the holders of the Senior Notes regarding certain amendments (the "Indenture Amendments") to the Debt Commitment Letter relating thereto will be promptly provided to covenants contained in the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceIndenture, the obligations dated as of March 12, 1992, by and between the Company and its Subsidiaries pursuant First Trust National Association, as trustee. Such offer to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash purchase and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” consent solicitation shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full made in accordance with the Company Credit Agreementwritten terms and conditions provided, subject from time to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything time, by Parent to the contrary contained hereinCompany and Applicable Law; provided, that, in any event, the parties agree that the terms and conditions of the Debt Offer and Indenture Amendments shall provide that the closing and effectiveness, respectively, thereof shall be contingent upon the Closing of the Merger. The Company shall not, without Parent’s obligations hereunder are not subject 's and Acquisition Sub's prior consent, waive any condition to a condition regarding Parent’s or any of its Affiliates’ obtaining funds the Debt Offer described in the written terms and conditions provided by Parent to consummate the Merger and the transactions contemplated by this AgreementCompany from time to time.
Appears in 1 contract
Samples: Merger Agreement (Shopko Stores Inc)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Letters with respect to the terms thereof conditionality, timing, availability, and aggregate amount of the Financing (including any “market flex” provisions) the amounts to be funded thereunder at the Closing), including using its reasonable best efforts efforts, subject to the conditions set forth in Section 7.8(a), to seek to enforce its rights under the Debt Commitment Letter Letters in the event of a breach thereof by the financing Financing provider(s) thereunder. Neither Parent nor Merger Sub shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Equity Commitment Letter (other than to increase the amount of the Equity Financing) without the Company's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed). Neither Parent nor Merger Sub shall permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the Company's prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from Debt Financing, (ii) impairs in any material respect the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt availability of the Debt Financing, or otherwise expands, (iii) amends or modifies any other provision of the conditions precedent to the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x) delay in any material respect or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateClosing, or (yiv) adversely affect impacts in any material respect the ability of Parent any party hereto to enforce its or cause the enforcement of the rights against other parties to of Parent or Merger Sub under any of the Debt Commitment Letter or the definitive agreements with respect relating thereto (or imposes additional material obligations on the Company, its Subsidiaries or their respective Affiliates prior to the Closing Date; provided, however, that Parent and Merger Sub may amend or restate the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would parties thereto who had not reasonably be expected to delay executed the Debt Commitment Letter as of the date hereof, and may otherwise amend, modify or prevent restate the Closing)Debt Commitment Letter in any manner not inconsistent with this sentence. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) waiver. Each of Parent shall, and Merger Sub shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Letter (provided that Letters until the Debt Commitment Letter may be amended, supplemented, replaced, modified funding of the Financing at or waived as provided in this Section 6.13), (B) prior to Closing and to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Debt Commitment Letter (or on terms no less favorable (taken as a whole) to Parent), (ii) to satisfy on a timely basis (taking into account the “expected timing of the commencement of the Marketing Period) all conditions applicable to it in such definitive agreements that are within its control, (iii) upon satisfaction of such conditions (without waiver thereof not consented to by Parent), to consummate the Financing at the Closing (with respect to amounts required to consummate the Merger and make other payments due at such time in accordance with the terms hereof) and (iv) to comply in all material respects with its obligations under the Commitment Letters.
(b) If any portion of the Debt Financing Agreements”) becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter and the related fee letters, (i) Parent and Merger Sub shall promptly notify the Company and (ii) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the Transactions with terms and conditions that are not materially less favorable to in any respect from the standpoint of Parent and the Company than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), terms and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before any related fee letters as promptly as reasonably practicable following the Effective Time occurrence of such event (the "Alternative Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B"), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies copy of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “"New Debt Commitment Letter”)") to the Company (redacted, together with all related fee letters and associated engagement letters (solely in the case of the fee letter, consistent with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedSection 3.8), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “"Financing" or the "Debt Financing” " shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “"Commitment Letters" or the "Debt Commitment Letter” " shall be deemed to include the Debt Commitment Letter which is Letters that are not superseded by a New Debt Commitment Letter at the time in question and each the New Debt Commitment Letter Letters to the extent then in effect, and (iii) any reference in this Agreement to “"fee letter” " shall be deemed to include any fee letter relating to the Debt Commitment Letter Letters that is are not superseded by any a New Debt Commitment Letter at the time in question and each the New Debt Commitment Letter Letters to the extent then in effect.
(ec) On Upon the Closing Daterequest of the Company, Parent shall provide all funds required to effect the repayment of all indebtedness under keep the Company Credit Agreement in full in accordance with reasonably informed of the status of its efforts to arrange the Financing and provide to the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
copies of the material definitive documents for the Financing. Parent shall give the Company prompt notice: (fi) Notwithstanding anything of any breach of any material provisions of any of the Commitment Letters or definitive document related to the contrary contained hereinFinancing by any party to any Commitment Letters or definitive document related to the Financing of which it has knowledge; (ii) of the receipt of any written notice or other written communication from a financing source for the Financing with respect to any actual or potential breach, Parent’s obligations hereunder are not subject default, termination or repudiation by any party to a condition regarding Parent’s any Commitment Letters or any definitive document related to the Financing or any material provisions of its Affiliates’ obtaining funds the Commitment Letters or any definitive document related to consummate the Financing; and (iii) of the occurrence of an event or development that Parent or Merger Sub expects to have a material and adverse impact on the transactions ability of Parent, Merger Sub or the Company (or the Surviving Corporation) to obtain all or any portion of the Financing contemplated by this Agreementthe Commitment Letters on the terms, in the manner or from the sources contemplated by the Commitment Letters or the definitive documents related to the Financing.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Letters and shall not, without the Company’s prior written consent, not permit any amendment, supplementmodification or replacement of the Financing Letters, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver replacement (Ax) reduces the aggregate amount of the cash proceeds from the Debt Financing or (By) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter conditions to the Financing in a manner that would reasonably be expected to (xi) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, Date or (yii) adversely affect impact the ability of Parent Parent, Merger Sub or the Company, as applicable to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements documents with respect thereto in each of clauses (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)i) and (ii) in any material respect. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall. For purposes of this Section 5.5, and references to “Financing” shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) include the financing contemplated by the Financing Letters as permitted to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replacedmodified or replaced by this Section 5.5(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or waived as provided in replaced by this Section 6.135.5(a), . Each of Parent and Merger Sub shall use its commercially reasonable efforts (Bi) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (Cii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of funding in the Debt Financing at the Closing set forth therein Commitment Letter applicable to it that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to and consummate the Debt Financing at or prior to the Closing, and (Diii) to comply with enforce its obligations rights under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, Financing and provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify material definitive documents for the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or Financing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter, (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall use their commercially reasonable efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions no less favorable, taken as a whole, to Parent and Merger Sub (or their affiliates) than the terms and conditions set forth in the Financing Letters as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to Closing. Notwithstanding anything contained in this Section 5.5 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required (1) to amend or waive any of the terms or conditions hereof or (2) to consummate the Closing any earlier than the final day of the Marketing Period. Notwithstanding anything contained in this Section 5.5 or in any other provision of this Agreement, Parent and Merger Sub shall give the Company prompt written notice: (i) of any material breach or default by any party to any Financing Letters or definitive document related to the Financing of any provisions of the Financing Letters; (ii) of the receipt of any written notice or other written communication from any financing source with respect to any: (A) material breach, default, termination or repudiation by any party to any Financing Letters of any provisions of the Financing Letters or (B) material dispute or disagreement between or among any parties to any Financing Letters; and (iii) if for any reason Parent or Merger Sub believes in good faith that it is reasonably likely that it will not be able to obtain all or any material portion of the Financing in the amounts or from the sources contemplated by the Financing Letters and that it is not reasonably likely that it will be able to obtain acceptable alternative financing prior to the final day of the Marketing Period; provided, that Parent and Merger Sub shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege.
(b) The Company shall provide to Parent and Merger Sub, and shall cause its Subsidiaries to provide, at Parent’s sole expense, and shall use commercially reasonable efforts to cause its Representatives, including legal and accounting, to provide, all cooperation reasonably requested by Parent or Merger Sub and all cooperation that is customary, necessary or advisable in connection with arranging and obtaining of the Financing or any permitted replacement, amended, modified or alternative financing (collectively with the Financing, the “Available Financing”) and the other Transactions (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) assisting with the preparation of offering and syndication documents and materials, including prospectuses, private placement memoranda, information memoranda and packages, lender and investor presentations, rating agency presentations, and similar documents and materials, in connection with the Available Financing (all such documents and materials, collectively, the “Offering Documents”), (ii) preparing and furnishing Parent and Merger Sub and their financing sources as promptly as practicable with all Required Information and all other information and disclosures relating to the Company and its Subsidiaries (including their businesses, operations, financial projections and prospects) as may be reasonably requested by Parent or Merger Sub to assist in preparation of the Offering Documents (including execution of customary authorization and management representation letters and certificates), (iii) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in connection with the Available Financing, including direct contact between senior management and Representatives of the Company and its Subsidiaries and Parent’s and Merger Sub’s financing sources and potential lenders and investors in the Available Financing, and obtaining any corporate, credit and ratings from rating agencies contemplated by the Debt Commitment Letter, (iv) obtaining accountant’s comfort letters and consents from the Company’s independent auditors, (v) assisting in the preparation of, and executing and delivering, definitive financing documents, including guarantee and collateral documents, hedging agreements and other certificates and documents as may be requested by Parent or Merger Sub (including a certificate of the chief financial officer of the Company and its Subsidiaries with respect to solvency matters), (vi) facilitating the pledging of collateral for the Available Financing, including taking commercially reasonable actions necessary to permit the financing sources of the Available Financing to evaluate the Company’s and its Subsidiaries’ real property and current assets, cash management and accounting systems, policies and procedures for the purpose of establishing collateral arrangements and establishing, as of the Effective Time, bank and other accounts and blocked account agreements and lockbox arrangements in connection with the Available Financing, (vii) using commercially reasonable efforts to ensure that the financing sources benefit from the existing lending relationships of the Company and its Subsidiaries, (viii) using commercially reasonable efforts to obtain such consents, approvals, authorizations and instruments which may be reasonably requested by Parent or Merger Sub in connection with the Available Financing and collateral arrangements, including customary payoff letters, lien releases, instruments of termination or discharge, legal opinions, surveys, title insurance and landlord consents, waivers and access agreements and (ix) facilitating the consummation of the Available Financing, including cooperating with Parent and Merger Sub to satisfy the conditions precedent to the Available Financing to the extent within the control of the Company and its Subsidiaries, and taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent or Merger Sub to permit the consummation of the Available Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately upon the Effective Time; provided, however, that, no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument (other than the authorization and representation letters and certificates referred to above) shall be effective until the Effective Time and, none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Available Financing prior to the Effective Time. The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Available Financing; provided, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.5(b) and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith, except with respect to any information prepared or provided by the Company or any of its Subsidiaries. All material non-public information provided by the Company or any of its Representatives pursuant to this Section 5.5(b) shall be kept confidential in accordance with the Confidentiality Agreement, except that (i) Parent and Merger Sub shall be permitted to disclose such information to potential sources of capital, rating agencies and prospective lenders and investors during syndication of the Available Financing subject to the potential sources of capital, ratings agencies and prospective lenders and investors entering into customary confidentiality undertakings with respect to such information (including through a notice and undertaking in a form customarily used in confidential information memoranda for senior credit facilities) and (ii) upon reasonable notice from Parent, the Company agrees to file with the SEC a Form 8-K or Form FD, in form and substance reasonably satisfactory to the Company, containing any material non-public information with respect to the Company or its subsidiaries contained in any offering memorandum to be used in connection with the offering of high yield debt securities contemplated by the Debt Commitment Letter.
(c) On each date on which the Company files with the SEC its Quarterly Report on Form 10-Q (a “10-Q”) or Annual Report on Form 10-K (a “10-K”) (or, if earlier, the date on which such 10-Q or 10-K, as applicable, was required to be filed), the Company shall deliver to Parent and Merger Sub a certificate executed by the Chief Financial Officer of the Company (the “Leverage Ratio Certificate”) setting forth the Closing Adjusted Leverage Ratio (as defined in Exhibit B hereto) calculated as of such date, together with supporting calculations in reasonable detail, which calculation, with respect to the Closing Consolidated Total Debt (as defined in Exhibit B hereto), shall give pro forma effect to the borrowing to take place under the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its, and shall cause its controlled Affiliates (as applicable) to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange consummate and obtain the Debt Financing on the terms and subject only to the conditions described set forth in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its commercially reasonable best efforts to seek (i) maintain in effect and comply with the Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions set forth in the Commitment Letter, (iii) satisfy on a timely basis all conditions applicable to Parent in the Commitment Letter at or prior to the Closing Date that are in its control, (iv) upon the satisfaction or waiver of the conditions to Parent’s obligations to consummate the Merger, draw the Financing in the amount required to consummate the transactions contemplated by this Agreement on the Closing Date and (v) in the event of a failure to fund by the Financing Sources in accordance with the Commitment Letter, enforce its rights under the Debt Commitment Letter in and the event of a breach thereof by the financing provider(sdefinitive agreements (if any) thereunderwith respect thereto. Parent shall not, without the Company’s prior written consentconsent of the Company, agree to or permit any termination of or amendment, supplement, replacement supplement or modification to be made to, or grant any waiver of any provision under, the Debt Commitment Letter if such termination, amendment, supplement, replacement, modification or waiver would (A) reduces reduce the aggregate amount of any portion of the cash proceeds from the Debt Financing or Financing, (B) imposes impose new or additional conditions precedent to the initial funding availability of the Financing or otherwise expands expand, amend or modify any of the conditions precedent to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x) prevent or impede or delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date), or (yC) adversely affect impact the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter Letter, or (D) delay or prevent the definitive agreements with respect thereto (provided, Closing or make the funding of the Financing less likely to occur; provided that Parent may may, without the consent of the Company, amend or otherwise modify the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long that have not executed the Commitment Letter on the date of this Agreement, as such action would not reasonably be expected to delay or prevent expressly contemplated by the Closing)Commitment Letter. Parent shall promptly deliver to the Company true, true and complete and correct copies of any such amendment, modification modification, supplement, consent or replacementwaiver to or under any Commitment Letter or the definitive agreements relating to the Financing promptly upon execution thereof.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) . Without limiting the generality of the foregoing, Parent agrees to notify shall give the Company promptlyprompt written notice of (i) any breach, default, termination, cancellation or repudiation by any party to the Commitment Letter, (ii) the receipt by Parent of any written notice or other written communication from any Financing Source with respect to any (A) breach, default, termination, cancellation or repudiation by any party to the Commitment Letter or (B) dispute or disagreement between Parent and in any event within two (2) Business Days, if at any time prior Financing Source related to the Financing that could reasonably be expected to delay or otherwise adversely impact the ability of Parent to obtain all or part of the Financing that is contemplated as of the date hereof to be funded on the Closing Date (igiving effect to market flex provisions), and (iii) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware occurrence of any breach an event or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would development that could reasonably be expected to adversely affect the availability ability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses Parent to provide, obtain all or any portion of the Debt Financing that is contemplated as of the date hereof to be funded on the Closing Date (giving effect to market flex provisions) on the terms and in the manner contemplated by the Debt Commitment Letter on the terms set forth thereinLetter. As soon as reasonably practicable, Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in the immediately preceding sentence. If any portion of the Financing becomes unavailable on the terms and conditions (including any applicable “market flex” provisions) contemplated by the Commitment Letter, Parent shall promptly notify the Company in writing and Parent shall use reasonable best efforts to arrange and obtain, reasonably promptly given the anticipated timing of Closing, in replacement thereof alternative financing (the “Alternative Financing”) in an amount sufficient to fund the Required Amount with terms and conditions (including “market flex” provisions) not materially less favorable to Parent (or its respective Affiliates) than the terms and conditions set forth in the Commitment Letter as in effect on the date of this Agreement (as it may have been amended or otherwise modified to the extent permitted by this Section 6.13(c7.10). Parent shall notdeliver to the Company true and complete copies of the financing letters for any such Alternative Financing (including fee letters that shall have fee or related economic information redacted pursuant to the terms thereof) pursuant to which any such alternative source shall have committed to provide all or any portion of the Alternative Financing.
(c) Prior to the Closing Date, nor the Company shall it permit use its reasonable best efforts to provide, and shall cause its Subsidiaries to use their reasonable best efforts to provide, and shall use reasonable best efforts to cause its and their respective officers, employees and advisors to provide, to Parent, at Parent’s sole cost and expense, such reasonable cooperation as is customary and reasonably requested by Parent in connection with the arrangement of the Financing, including using reasonable best efforts to:
(i) furnish Parent with the Required Information;
(ii) upon reasonable advance notice, cause senior management of the Company to participate in a reasonable number of lender meetings, diligence sessions and sessions with rating agencies in connection with the Financing, all at reasonable times and intervals;
(iii) assist Parent with the preparation by Parent and the Financing Sources of materials for rating agency presentations, bank information memoranda, lender presentations, syndication memoranda and similar marketing or offering materials, memoranda or documents, in each case to the extent, and solely to the extent, such materials relate to information concerning the Company and the Company Subsidiaries and, if required, assist Parent in obtaining ratings in connection with the Financing;
(iv) execute and deliver as of (but not prior to) the Closing any pledge and security documents, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent (provided, that (A) none of the documents or certificates shall be executed or delivered except in connection with the Closing, (B) the effectiveness thereof shall be conditioned upon, or become operative upon, the occurrence of the Closing and (C) no liability shall be imposed on the Company or any of its Affiliates toSubsidiaries or any of their respective officers or employees involved prior to the Closing Date) and otherwise reasonably facilitate the pledging of collateral;
(v) provide, without at least three (3) Business Days prior to the prior written consent Closing, all documentation and other information about the Company and its Subsidiaries as is reasonably required under applicable “know your customer” and anti-money laundering rules and regulations including the USA PATRIOT Act, in each case to the extent requested at least ten (10) Business Days in advance of the Closing;
(vi) request the Payoff Letter from the applicable existing lenders (or agent in respect thereof) of the Company or its Subsidiaries;
(vii) subject to the proviso in Section 7.10(c)(ix), cause the Company’s accountants to provide, consistent with customary practice, reasonable assistance to Parent in connection with Parent’s preparation of pro forma financial statements and information;
(viii) as promptly as reasonably practicable, inform Parent if the Company or its Subsidiaries shall have Knowledge (x) that any restatement of the financial statements of ABILITY Network Inc. comprising a portion of the Required Information must be made (or the auditors of ABILITY Network Inc. have recommended such a restatement be made) in order for such financial statements to comply with GAAP or (y) that any of the Required Information is no longer Compliant; and
(ix) solely with respect to financial information and data derived from the historical books and records of the Company and its Subsidiaries, assist Parent with the preparation of pro forma financial information and pro forma financial statements necessary or reasonably required by Parent or the Financing Sources, it being agreed that the Company will not be required to provide any information or assistance relating to (A) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the Financing or (B) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the acquisition of the Company by Parent; provided, however, that (I) in no event shall the Company, the Company’s Subsidiaries or the Company’s accountants be required to provide, prepare or assist with the preparation of, any purchase accounting adjustments, valuations or purchase price allocations and (II) in no event shall the Company, the Company’s Subsidiaries or the Company’s accountants be required to assist in causing such pro forma financial information and pro forma financial statements to comply with Regulation S-X.
(d) Notwithstanding anything to the contrary herein, none of such requested cooperation provided in accordance with this Section 7.10 shall unreasonably interfere with the normal business or operations of the Company and its Subsidiaries and in no event shall the Company or any of its Subsidiaries be required to (i) bear any expense, pay any commitment or other fee, enter into any definitive agreement, incur any other liability, make any other payment, be an issuer or other obligor with respect to the Financing or agree to provide any indemnity in connection with the Financing or any of the foregoing in each case prior to the Effective Time or (ii) take any action to cause any condition to Closing set forth in this Agreement to fail to be satisfied or enter into otherwise cause any transaction breach of this Agreement that would provide Parent the right to terminate this Agreement or seek indemnity under the terms hereof. In addition, nothing in this Section 7.10 shall require (a) the Company or any of its Subsidiaries to provide access to or disclose information when the Company determines that such access or disclosure would reasonably be expected to jeopardize the attorney client privilege, (b) any action that would conflict with or violate the Company Organizational Documents or any law or result in, prior to the Effective Time, the contravention of, or that would reasonably be expected to materially impairresult in, delay prior to the Effective Time, a violation or prevent consummation breach of, or default under, any Material Contract, (c) any employee, officer or director of all the Company or any portion of its Subsidiaries incurring any personal liability (as opposed to liability in his or her capacity as an officer of such Person) with respect to any matters related to the Debt Financing.
, (d) Parent the Company, any of its Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing or any documentation related thereto prior to the Effective Time or (e) the Company, any of its Subsidiaries or their counsel to provide any legal opinion in connection with the Financing. For the avoidance of doubt, none of the Company or any of its Subsidiaries or their respective officers, directors or employees shall have be required to execute or enter into or perform any agreement with respect to the right to substitute Financing contemplated by the net cash proceeds received by Parent after Commitment Letter that is not contingent upon the date hereof and Closing or that would be effective prior to the Closing from consummated offerings and no directors of the Company or other incurrences any of debt its Subsidiaries that will not be continuing directors, acting in such capacity, shall be required to execute or enter into or perform any agreement with respect to the Financing. Parent shall, with respect to the arrangement of the Financing, (I) promptly reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including notes(A) reasonable attorneys’ fees and (B) expenses of the Company’s accounting firms incurred by Parent for all the Company or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering its Subsidiaries or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid their respective Representatives in connection with the transactions contemplated by this AgreementFinancing, (x) including the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations cooperation of the Company and its Subsidiaries pursuant to and Representatives contemplated by Section 6.14 shall no longer be 7.10(c)) and (II) indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all losses, claims, damages, liabilities, costs, expenses, fines, penalties and amounts paid in effect. Furthersettlement (including all interest, Parent shall have the right to substitute commitments assessments and other charges paid or payable in connection with or in respect of other financings for all any thereof) suffered or incurred by any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid them in connection with the transactions contemplated by this Agreement and all conditions precedent to funding arrangement of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies including the performance of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality oftheir respective obligations under, or the aggregate amount taking of proceeds available underor refraining from any action in accordance with, the Debt Financing contained therein redactedthis Section 7.10), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter case other than to the extent then any of the foregoing was suffered or incurred as a result of the gross negligence or willful misconduct of the Company or any of its Subsidiaries or, in effecteach case, their respective Affiliates and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectRepresentatives.
(e) On the Closing DateThe Company shall use its reasonable best efforts to, and shall cause its Subsidiaries to use their reasonable best efforts to, periodically update any Required Information provided to Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)as may be necessary so that such Required Information is Compliant.
(f) Notwithstanding anything For the avoidance of doubt, the parties hereto acknowledge and agree that the provisions contained in this Section 7.10 represent the sole obligation of the Company, its Subsidiaries and Affiliates and their respective Representatives with respect to cooperation in connection with the arrangement of the Financing and no other provision of this Agreement (including the Exhibits and Schedules hereto) shall be deemed to expand or modify such obligations.
(g) The Company hereby consents, on behalf of itself and each of the Acquired Companies, to the contrary contained hereinuse of the Acquired Companies’ logos solely in connection with the Financing; provided, Parentthat Parent shall ensure that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Acquired Companies or the Acquired Companies’ reputation or goodwill and will comply with the Company’s obligations hereunder are not subject usage requirements to a condition regarding Parent’s or any the extent made available to Parent prior to the date of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
(h) Parent acknowledges and agrees that the obtaining of the Financing, or any Alternative Financing, is not a condition to Closing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Inovalon Holdings, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or advisable to consummate the Equity Financing on the Closing Date, and Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary or advisable to arrange the Debt Financing in an amount necessary, advisable or proper together with the Equity Financing, to arrange fund the Financing Amounts and obtain to consummate the Debt Financing on the terms Closing Date, including the following:
(i) maintaining in full force and conditions described in effect the Debt Commitment Letter pursuant to the terms thereof (including and not permitting any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, not consenting to any termination or any waiver of any provision or remedy under, and not replacing, the Debt Commitment Letter (other than as contemplated by the Debt Commitment Letter, as of the date hereof), in any case if such amendment, supplementmodification, waiver or replacement, modification or waiver : (A) reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the cash proceeds from the Debt Financing (unless an equal amount from alternative financing sources is then made available on a committed basis subject to no additional conditions to funding) to an amount, together with the Equity Financing, less than what is necessary to fund the Financing Amounts or (B) imposes new or additional conditions to the initial funding or otherwise expands of any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x) delay or prevent the funding in full Closing (it being understood, for the avoidance of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provideddoubt, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Commitment Letter as of the date hereof);
(ii) causing the Equity Financing to be consummated upon satisfaction of the Financing Conditions contained in the Equity Commitment Letter;
(iii) satisfying on a timely basis (or, if available, obtain waivers of) the Financing Conditions;
(iv) negotiating, executing and delivering Debt Financing Documents that reflect and are consistent with the terms contained in the Debt Commitment Letter or on such action other terms acceptable to the Financing Sources; and
(v) in the event that the conditions set forth in Section 6.1 and Section 6.3 have been satisfied, or upon funding of the Debt Financing would not reasonably be expected satisfied, causing the full amount of the Financing to delay be funded at or prevent prior to the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shallshall not amend, and shall cause its Affiliates and Representatives tomodify, use its reasonable best efforts waive or replace, or agree to amend, modify, waive or replace (Ain any case whether by action or inaction) to maintain in effect any term of the Debt Equity Commitment Letter without the prior written consent of the Company.
(provided that c) Upon request of the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Company, (Bi) Parent shall provide copies of all material agreements and other documents relating to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply the Company; provided that only a redacted version of the Fee Letter (with their obligations under such redaction to be reasonably acceptable to the Debt Commitment Letter Financing Sources) may be disclosed to the Company, and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall (ii) keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide Financing and any material developments with respect to the Company copies of all executed Debt Financing AgreementsFinancing.
(cd) Without limiting the foregoing, Neither Parent agrees to notify the Company promptly, and in nor any event within two (2) Business Days, if at of its Affiliates shall take any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default action that would reasonably be expected to affect materially delay or prevent the availability consummation of the Debt Financing or the Equity Financing.
(iiie) a counterparty indicates in writing or orally In the event that it will not provide, or it refuses (i) the commitments with respect to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings expired or other incurrences of debt been terminated, (including notesii) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that shall have become unavailable for any reason or (viii) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification any party to the Debt Commitment Letter relating thereto will shall have materially breached or repudiated its obligations thereunder, in each case, such that the Financing Amounts shall not be able to be satisfied at the Closing, Parent shall promptly provided notify the Company of any such event (to the Company. If commitments under extent Parent becomes aware thereof) and shall use commercially reasonable efforts to obtain, as promptly as practicable and in any event prior to the Outside Date, alternative debt financing on terms at least as favorable to Parent as the terms of the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations or as are reasonably available for financings of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing type contemplated by the Debt Commitment Letter in the debt markets at such time (“Debt Replacement Financing”), in an amount that, together with the Equity Financing and all other funds available to Parent, will be sufficient to pay the Financing Amounts. Any Debt Replacement financing shall be subject to the same obligations as modified pursuant to clause (ii) below, (ii) any reference set forth in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating Section 5.19 with respect to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. Parent and Purchaser are not permitted to make any amendment, modification, supplement, or replacement to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the consent of Xxxxxxxxx that (ai) Subject reduces the aggregate amount of the Debt Financing, (ii) imposes new or additional conditions or otherwise expands or adversely amends or modifies any of the conditions to the terms Debt Financing, (iii) would modify the confidentiality provisions of the Debt Commitment Letter in any respect, or (iv) would reasonably be expected to (A) materially delay, prevent, or impede the funding of the Debt Financing or the consummation of the Offer, the Merger and the other transactions contemplated by the Merger Agreement or (B) adversely impact the ability of Parent or Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect to the Debt Commitment Letter (the “Definitive Financing Agreements”). Parent and Purchaser may amend or replace the Debt Commitment Letter to add or replace lenders, arrangers or similar entities so long as such action would not reasonably be expected to materially delay, prevent, or impede the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) or the consummation of this Agreementthe Offer, the Merger and the other transactions, or adversely impact Parent’s or Purchaser’s ability to enforce its rights under the Debt Commitment Letter. Parent shall and Purchaser have agreed to use its their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and subject to the conditions described set forth in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall notAcceptance Time, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its including by using their reasonable best efforts (Ai) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Definitive Financing Agreements”) Agreements on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterLetter or on other terms that would not reasonably be expected to materially prevent or delay the Offer, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt and the other transactions contemplated by the Merger Agreement or the date on which the Debt Financing could be obtained or make the funding of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject less likely to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at occur on or prior to the ClosingAcceptance Time, (Diii) to comply on a timely basis with its (or obtain any waiver of) their covenants and obligations under set forth in, and satisfy (or obtain a waiver of) on a timely basis all conditions to the funding in, the Debt Commitment LetterLetter and the Definitive Financing Agreements, and (E) in each case, as necessary to consummate the Debt Financing at or prior transactions contemplated by the Merger Agreement and satisfy all obligations of Parent and Purchaser pursuant to the Effective TimeMerger Agreement. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter or the Definitive Financing Agreements have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and will cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing debt providers thereunder to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingrespective obligations. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt FinancingIf, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date Effective Time, (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent or Purchaser becomes aware of any material breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Definitive Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifAgreement, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally provides notice that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
Commitment Letter, or (div) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Furtherbecomes unavailable for any reason, Parent shall have the right has agreed to substitute commitments in respect of other financings for all or any portion of the Debt Financing (A) use reasonable best efforts to obtain alternative debt financing from the same and/or alternative financing or other sources so long as and which does not include any conditions to the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding consummation of such alternative debt financing are, in respect of certainty of funding, equivalent to (or that are more favorable to the Company than) onerous than the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Letter and Definitive Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectAgreements, and (iiiB) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment promptly notify Xxxxxxxxx of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger such unavailability and the transactions contemplated by this Agreementreason therefor.
Appears in 1 contract
Financing. (aA) Subject Parent has delivered to the Company a true, accurate and complete copy of an executed equity commitment letter, dated as of March 20, 2022, as amended by that certain Amendment to Equity Commitment Letter, dated as of the Amendment Date, by and among Parent and Sponsor, including all exhibits, schedules, annexes and amendments thereto (the “Equity Commitment Letter”), pursuant to which, and subject to the terms and conditions of this Agreementwhich, Sponsor has committed to provide the amounts set forth therein to Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain for the Debt Financing on purpose of funding the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof Required Amount (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision undersuch committed equity financing, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or “Equity Financing”).
(B) imposes new or additional conditions to the initial funding or otherwise expands any (i) As of the conditions to Amendment Date, the receipt of the Debt FinancingEquity Commitment Letter is in full force and effect and has not been withdrawn, rescinded or terminated, or otherwise expandsamended or modified in any respect and (ii) the Equity Commitment Letter, amends in the form so delivered, constitutes a legal, valid and binding obligation of Parent or modifies any other provision of Merger Sub, as applicable, and Sponsor, enforceable against the Debt parties thereto in accordance with its terms except as enforceability may be affected by applicable Enforceability Limitations. The Equity Commitment Letter is the only agreement relating to the Equity Financing as of Amendment Date. Other than as expressly set forth in a manner the Equity Commitment Letter, there are no other agreements, side letters, or arrangements, conditions precedent or other contingencies relating to the Equity Commitment Letter that would reasonably be expected to (x) delay impair the amount, availability or prevent the funding in full conditionality of the Debt Financing Equity Financing. The Equity Commitment Letter provides that the Company is an express third-party beneficiary of the Equity Commitment Letter in connection with Company’s exercise of its rights under Section 9.6 of the Merger Agreement.
(C) As of Amendment Date, no event has occurred which, with or satisfaction without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub, as applicable, under any term of the Equity Commitment Letter or, would (i) make any of the assumptions or any of the statements set forth in the Equity Commitment Letter inaccurate in any material respect, (ii) result in any of the conditions to in the Debt FinancingEquity Commitment Letter not being satisfied or (iii) otherwise result in the Equity Financing not being available on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon Assuming satisfaction of the conditions set forth in Sections 7.1 and 7.2 of the Debt Merger Agreement, as of the Amendment Date, each of Parent and Merger Sub has no reason to believe that any of the conditions in the Equity Commitment Letter, Letter will fail to consummate be satisfied on a timely basis or that the Debt full amount of the Equity Financing will not be available to be funded at or prior to the Closing, Effective Time.
(D) to comply with its obligations under The aggregate proceeds from the Debt Commitment LetterEquity Financing constitute all of the financing required for the consummation of the Merger and the other Transactions, and are sufficient in amount for Parent or Merger Sub, as applicable, to pay the Merger Consideration payable for all Company Shares in connection with the Transaction, any other amounts required to be paid at Closing in connection with the consummation of the Transactions (Eincluding any and all payments with respect to Company Stock Options or Company RSUs payable under this Agreement at Closing) to consummate and, together with the Debt Financing at or prior Company’s cash on hand as of the Closing Date, all associated fees, costs and expenses in connection with the Merger and the other Transactions, including the Equity Financing, in each case, to the Effective Timeextent required to be paid on the Closing Date (collectively, the “Required Amount”). In the event that all The only conditions precedent related to the obligations of Sponsor to fund the full amount of the Equity Financing are expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Equity Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange consummate the transactions contemplated by the Subscription Agreements and obtain the Debt Financing Backstop Subscription Agreement on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) therein, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(a) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment LetterSubscription Agreements and the Backstop Subscription Agreement, (b) maintain in effect the Subscription Agreements and the Backstop Subscription Agreement in accordance with the terms and conditions thereof, (Ec) to consummate the Debt Financing at or prior to the Effective Time. In the event that satisfy on a timely basis all conditions precedent expressly and covenants applicable to Parent set forth in the Debt Commitment Letter have been orapplicable Subscription Agreements and the Backstop Subscription Agreement, upon funding of (d) enforce its rights under the Debt Financing will be, satisfied, Parent Subscription Agreements and Sub shall use their reasonable best efforts the Backstop Subscription Agreement to enforce their rights under, and cause the Financing Sources, lenders PIPE Investors and the other persons providing Backstop Investor, respectively, to pay to (or committing as directed by) Parent the applicable purchase price under each PIPE Investor’s applicable Subscription Agreement and the Backstop Investor’s Backstop Subscription Agreement, as applicable, in accordance with its terms and (e) consummate the PIPE Financing and the Backstop Financing when required pursuant to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingthis Agreement. Parent shall keep give the Company informed on a current basis and in reasonable detail prompt written notice of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated any request or proposal for an amendment to any reason, Subscription Agreement (other than as a result of any assignments or transfers contemplated therein or otherwise permitted thereby); (ii) Parent becomes aware of any material breach or material default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would reasonably be expected to affect the availability of the Debt Financing give rise to any breach or default) by any party to any Subscription Agreement known to Parent; (iii) a counterparty indicates in writing of the receipt of any written notice or orally that it will not provideother written communication from any party to any Subscription Agreement with respect to any actual, potential or it refuses claimed expiration, lapse, withdrawal, breach, default, termination or repudiation by any party to provide, all any Subscription Agreement or any portion provisions of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment LetterSubscription Agreement; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (ziv) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments any underfunding of any amount under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Subscription Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Backstop Subscription Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Virgin Group Acquisition Corp. II)
Financing. (a) Subject Parent and Merger Sub each shall use its commercially reasonable best efforts to obtain the Equity Financing on the terms and conditions set forth in the Equity Financing Commitment. Neither Parent nor Merger Sub shall amend, alter or waive, or agree to amend, alter or waive, any term of the Equity Financing Commitment, without the prior written consent of the Company. Parent and Merger Sub shall use their commercially reasonable best efforts to maintain in effect the Equity Financing Commitment until the earlier of the termination of this AgreementAgreement and the consummation of the transactions contemplated by this Agreement and to enforce their rights under the Equity Financing Commitment. Each of Parent and Merger Sub agrees to notify the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (i) the Equity Financing Commitment expires or is terminated for any reason (or if any Person attempts or purports to terminate the Equity Financing Commitment, whether or not such attempted or purported termination is valid), or (ii) the investor party to the Equity Financing Commitment refuses to provide the full Equity Financing on the terms set forth in the Equity Financing Commitment. Except as set forth in Section 4.13(b), in no event shall Parent and Merger Sub be required to seek or obtain equity financing other than the Equity Financing and in no event shall the Guarantors be required to provide equity financing in an amount in excess of the amount set forth in the Equity Financing Commitment.
(b) Parent shall use its commercially reasonable best efforts to obtain the Debt Financing on the terms and conditions (including flex provisions) set forth in the Debt Financing Commitment. Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Financing Commitment, without the prior written consent of the Company, if such amendment, modification or waiver would (i) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing), unless the Equity Financing is increased by a corresponding amount on terms no less favorable in any material respect (including as to conditionality), or (ii) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Debt Financing in a manner that could reasonably be expected to prevent, delay or impede the Closing or the funding of the Debt Financing. Notwithstanding the foregoing, Parent and Merger Sub may, to the extent expressly permitted under the Debt Financing Commitments, (A) amend or modify the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment as of the date hereof, if the addition of such additional parties, individually or in the aggregate, would not prevent, materially delay or materially impede the availability of the Debt Financing or the consummation of the transactions contemplated by this Agreement, and (B) enter into additional financing commitment letters with respect to the debt financing of the transactions contemplated by this Agreement; provided, that such commitment letters (x) do not contain any new or additional conditions other than those set forth in the Debt Financing Commitment or terms that could reasonably be expected to prevent, delay or impede the Closing or the funding of the Debt Financing and (y) if such commitments are reduced, the Equity Financing Commitment is increased by an amount corresponding to such reduction.
(c) Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Financing Commitments, including using its commercially reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter Financing Commitments pursuant to their terms, (provided that ii) satisfy, perform and observe on a timely basis all conditions and, in all material respects, all covenants applicable to Parent or Merger Sub in the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided Financing Commitments and otherwise comply in this Section 6.13)all material respects with its obligations thereunder, (Biii) to negotiate in good faith and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions (including any flex provisions) contemplated by the Debt Financing Commitments, (iv) upon satisfaction of the conditions contained in the Financing Commitments, consummate the Financing at or prior to Closing, and (v) refrain from using any proceeds of the Debt Financing as a dividend to Parent’s stockholders, if necessary. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (which in no event shall be more than two (2) Business Days from their knowledge thereof): (A) of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any material breach or default) by any party to any Financing Commitment or definitive document related to the Financing; and (B) of the receipt of any written notice or other written communication from any member of the Financing Group with respect to any material breach or default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of the Financing Commitment or any definitive document related to the Financing. Notwithstanding anything to the contrary contained in this Agreement, nothing contained in this Agreement shall require, and in no event shall the commercially reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent, Merger Sub or any of their Affiliates to (i) pay any fees or other amounts related to the Debt Financing in excess of those contemplated by the Debt Financing Commitments (and related fee letters) or (ii) threaten, commence or pursue litigation, arbitration or other adversarial proceedings against any Debt Financing Source or Affiliate of any of same. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that are it derives no contractual rights, whether as a third party beneficiary or otherwise, under the Debt Financing Commitments or any debt financing document related to the Debt Financing and shall not be entitled to enforce any such Debt Financing Commitments or documents against any agent, arranger, bookrunner, lender, letter of credit issuer or other financing party that is a party to any such Debt Financing Commitments or document (including PNC Bank, National Association, GSO Capital Partners LP and their respective Affiliates) (collectively, the “Financing Group”).
(d) In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated (including flex provisions) in the Debt Financing Commitment, Parent shall use its commercially reasonable best efforts to promptly arrange and obtain any such portion from alternative sources (the “Alternative Financing”) on terms not materially less favorable to Parent than those contained in the Debt Commitment LetterFinancing Commitments (taking into account flex provisions) (as determined in the sole discretion of Parent). Parent shall promptly provide a true, correct and complete copy of each Alternative Financing commitment (Ctogether with a copy of any related fee letter with only the fee amount redacted) to satisfy on a timely basis the Company.
(or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior e) Prior to the Closing, (D) to comply with its obligations under at Parent’s sole expense, the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub Company shall use their commercially reasonable best efforts to enforce their rights under, provide Parent and cause Merger Sub with such cooperation in connection with the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
Merger (c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of including the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information Financing Commitments) as may be reasonably requested by Parent; provided, that (i) no liability or obligation (including any liability or obligation to pay any commitment or other similar fee) of the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit or any of its Affiliates toSubsidiaries under any certificate, without document or instrument shall be effective until the prior written consent Effective Time and none of the Company, Company or any of its Subsidiaries shall be required to take any action that is not contingent upon the Closing (including the entry into of any agreement that is effective before the Effective Time) or enter into any transaction that would be effective prior to the Effective Time, (ii) nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or any of its Subsidiaries, (iii) none of the Company or any of its Subsidiaries shall be required to issue any offering or information document and (iv) none of the Company or any of its Subsidiaries shall be required to take any action pursuant to this Section 4.13(e) that would subject it to actual or potential liability for which it would not be indemnified hereunder or to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time. Subject in all cases to the proviso in the immediately preceding sentence, such cooperation shall include the following: (A) participating in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the Debt Financing and senior management and Representatives, with appropriate seniority and expertise, of the Company and its Subsidiaries), presentations, road shows, due diligence sessions, and drafting sessions; (B) assisting Parent and Merger Sub with the preparation of customary offering memoranda, bank information memoranda, and similar documents relating to the Debt Financing; (C) delivery to Parent, Merger Sub and their Financing Sources of all information with respect to the business, operations, financial condition, projections and prospects of the Company and its Subsidiaries as may be reasonably requested by Parent (including in connection with Parent’s preparation of pro forma financial statements); (D) participation by senior management of the Company in the negotiation of, and the execution and delivery of, the definitive agreements contemplated by the Debt Financing Commitments; (E) providing and executing documents as may be expected reasonably requested by Parent, including a certificate of the Chief Financial Officer of the Company with respect to materially impairsolvency matters; (F) executing and delivering customary pledge and security documents, delay or prevent consummation affidavits of title, estoppels and ground lease estoppels and consents, and otherwise facilitating the pledge of collateral; (G) cooperating with marketing efforts of Parent, Merger Sub and their Financing Sources for all or any portion of the Debt Financing.
; (dH) Parent shall have using commercially reasonable efforts to obtain accountant’s comfort letters and legal opinions from the right Company’s current outside legal counsel (it being understood that the main enforceability legal opinion relating to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing will be rendered by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available counsel to Parent) reasonably requested by Parent; and (I) using commercially reasonable best efforts to arrange for customary payoff letters, is sufficient to pay all amounts required to be paid Lien terminations and instruments of discharge in connection with the transactions contemplated by this Agreement, (x) the proceeds repayment of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations outstanding Indebtedness of the Company and its Subsidiaries, as contemplated by the Financing Commitments. All non-public or otherwise confidential information regarding the Company or any of its Subsidiaries obtained by Parent, Merger Sub or any of their respective Representatives pursuant to this Section 6.14 4.13(e) shall no longer be kept confidential in effect. Furtheraccordance with the Confidentiality Agreement; provided, that the Company agrees that Parent shall have and Merger Sub may share non-public or otherwise confidential information with the right to substitute commitments Financing Sources in respect of other financings for all or any portion of connection with the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount marketing of the Debt Financing, together and each such Financing Source shall be deemed a “Representative” (as defined in the Confidentiality Agreement) thereunder and the Affiliate of Parent that is a counterparty to the Confidentiality Agreement shall be responsible for any breach of the Confidentiality Agreement by such Financing Source or its officers, directors, employees or other representatives with other cash and cash equivalents available to Parentwhom the confidential information is shared. Parent shall, is sufficient to pay promptly upon request by the Company, reimburse the Company for all amounts required to be paid reasonable out-of-pocket costs (including reasonable attorneys’ fees) incurred by the Company or any of its Subsidiaries in connection with the transactions cooperation contemplated by this Agreement Section 4.13(e). Parent and Merger Sub shall, on a joint and several basis, indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent to funding liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by any of such financing are, them in respect connection with the arrangement of certainty of funding, equivalent to the Financing (or more favorable including any action taken in accordance with this Section 4.13(e)) and any information utilized in connection therewith (other than historical information relating to the Company than) or any of its Subsidiaries approved by the conditions precedent Company in writing specifically for use in the Debt Financing offering documents). The Company hereby consents to the use of its and its Subsidiaries’ logos in connection with the Debt Financing; provided, that such logos shall be used solely in a manner that is not intended or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries or any of their respective Intellectual Property rights or imply that the Company or any of its Subsidiaries have prepared, endorsed or approved any such materials. Notwithstanding anything to the contrary, the condition set forth in Section 5.2(b), as it applies to the Debt Commitment LetterCompany’s obligations under this Section 4.13(e), shall be deemed satisfied unless the Financing (or any alternative financing) has not been obtained primarily as a result of the Company’s or its Subsidiaries’ knowing and material breach of their obligations under this Section 4.13(e).
(f) Each of Parent and Merger Sub acknowledges and agrees that the obtaining of the Financing, or any alternative financing, is not a condition to supplement Closing. In addition, each of Parent and Merger Sub acknowledges and agrees that any dividend payments by the Parent or replace any of its Affiliates as described in the Debt Financing Commitments are not a condition to Closing.
(g) For purposes of this Section 4.13, unless the context otherwise requires, references to “Alternative Debt Financing”). True” shall include the financing contemplated by the Financing Commitments as permitted to be replaced, correct and complete copies of each alternative amended and/or modified by this Section 4.13, references to “Equity Financing” shall include the equity financing commitment in respect of such Alternative Debt contemplated by the Equity Financing (eachCommitment as permitted to be amended and/or modified by this Section 4.13, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided references to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Financing Commitments as permitted to be replaced, amended and/or modified pursuant by this Section 4.13 and references to clause (ii) below, (ii) any reference in this Agreement to the “Equity Financing Commitment” or “Debt Commitment LetterFinancing Commitments” shall include such documents as permitted to be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectreplaced, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated amended and/or modified by this AgreementSection 4.13.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain (i) maintain in effect the Debt Financing and the Debt Financing Commitments, (ii) negotiate and enter into definitive financing agreements with respect to the Debt Financing and Debt Financing Commitments on the terms and conditions (including any “flex” provisions) described in the Debt Commitment Letter pursuant Financing Commitments so that such agreements are in effect no later than the Closing, (iii) cause its Representatives to cooperate in the preparation of all documents (including offering memoranda, private placement memoranda, prospectuses and road show presentations, if any) and the making of all filings in connection with the Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the terms thereof Financing Commitments, (including any “market flex” provisionsiv) including using satisfy on a timely basis all conditions in the Financing Commitments and comply with its reasonable best efforts obligations thereunder (in each case, that are in its control) and (v) subject to seek to enforce its rights under the satisfaction or waiver of the conditions set forth in the Debt Commitment Letter Financing Commitments, otherwise take, or cause to be taken, all actions and do, or cause to be done, all other things necessary, proper or advisable to consummate the Debt Financing at or prior to the Closing. Buyer shall keep Seller fully informed of material developments in the event respect of a breach thereof by the financing provider(s) thereunderprocess relating thereto. Parent Notwithstanding anything to the contrary herein, the commercially reasonable efforts of Buyer with respect to the Debt Financing shall notnot include any obligation to institute any Action against a Financing Source providing Debt Financing. From the date hereof to the Closing, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made Buyer shall not agree to, or permit, any amendment or modification of, or waiver of any provision under, the Financing Commitments or other final documentation relating to the Debt Commitment Letter if such amendment, supplement, replacement, modification Financing in a manner that would (x) materially delay or waiver prevent the Closing in any respect or (y) (A) reduces reduce the aggregate amount of the cash proceeds from Debt Financing Commitments (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) unless the Equity Financing is increased by a corresponding amount, (B) imposes impose new or additional conditions to the initial funding material conditions, or otherwise expands amend, modify or expand any of the conditions in a material manner, to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would (C) reasonably be expected to (x) delay or prevent make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yD) adversely affect impacts the ability of Parent Buyer to enforce its rights against the other parties to the Debt Financing Commitment Letter or the definitive agreements with respect thereto thereto, the ability of Buyer to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, without the prior written consent of Seller (providedwhich consent may not be unreasonably withheld, that Parent may amend the Debt Commitment Letter to add conditioned or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closingdelayed). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shallPrior to the Closing, Seller shall use its reasonable best efforts to provide, and shall cause its Affiliates and Representatives toto use reasonable best efforts to provide, use all reasonable cooperation requested by Buyer in connection with the arrangement of the Debt Financing, including using its reasonable best efforts to (Ai) to maintain in effect furnish the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of Sources providing the Debt Financing (as promptly as reasonably practicable) with financial and other pertinent information regarding the Business and the JVs required pursuant to the Financing Commitments; (ii) participate in a reasonable number of meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for the Financing Sources), drafting sessions, road shows, rating agency presentations and due diligence sessions; (iii) furnish Buyer for distribution to the Financing Sources providing the Debt Financing as promptly as practicable with pertinent information as is customary in connection with the Financing regarding the Business’ and the JVs’ assets and operations and any security required therefor; (iv) assist Buyer and the Financing Sources providing the Debt Financing in the preparation of a customary offering document and bank information memoranda and lender presentations for any of the Financing, and materials for rating agency presentations; (v) take all corporate actions, subject to the consummation of the Closing, reasonably requested by Buyer to permit the consummation of the Financing and to permit the proceeds thereof to be made available to Buyer; (vi) cause the appropriate authorized Representatives of Seller or the Business or the JVs to execute and deliver any pledge and security documents, definitive financing documents or other certificates or documents as may be reasonably requested by Buyer or otherwise facilitate the pledging of Collateral (as defined in the Financing Commitments) for delivery at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction consummation of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing; (vii) cause the appropriate authorized Representatives of Seller to execute and deliver any credit agreements or indentures or other definitive financing documents on terms satisfactory to Buyer at and as of the Closing; (viii) provide, if requested by Buyer, authorization letters (Dincluding with respect to absence of material non-public information in any public-side version of documents distributed to prospective lenders) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate Financing Sources providing the Debt Financing authorizing the distribution of information to prospective lenders; (ix) cooperate reasonably with the Financing Sources providing the Debt Financing’s due diligence, to the extent customary and reasonable; (x) cooperate reasonably with the Financing Sources providing the Debt Financing to obtain accountant’s comfort letters, legal opinions and, at Buyer’s sole cost and expense, surveys, title insurance, landlord, warehouseman and bailee lien and access agreements, deposit and investment control agreements, in each case as reasonably requested by Buyer and customary for financings similar to the Debt Financing; (xi) at least five days prior to the Closing, provide all documentation and other information about the Business or the JVs as is reasonably requested in writing by Buyer which relates to applicable “know your customer” and anti-money laundering rules and regulations including without limitation the USA PATRIOT ACT; (xii) negotiate in good faith a subordination arrangement with respect to the Notes on substantially the terms of the agreements attached to the Notes (with any immaterial modifications to such terms as are reasonably satisfactory to the Seller and the Financing Sources providing the Debt Financing); and (xiii) providing (A) documents reasonably requested by Buyer or its Financing Sources relating to the repayment of the existing Indebtedness of the Business or the JVs and the release of related Liens (except Permitted Liens), including customary payoff letters; and (B) an executed certificate of the Person who will be President or Controller of the Business or the JVs immediately following the Closing with respect to solvency matters substantially in the form attached to the Debt Financing Commitment. Notwithstanding anything herein to the contrary, (w) nothing in this Section 7.13 shall require such cooperation to the extent it would require Seller to waive or amend any terms of this Agreement, (x) nothing in this Section 7.13 shall require such cooperation from Seller or its Affiliates to the extent it would unreasonably interfere with the ongoing operations of Seller, the Business, the JVs or their respective Affiliates, (y) nothing in this Section 7.13 shall allow any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media and (z) no liability or obligation of Seller, the JVs or any of their respective Affiliates, or any of their respective Representatives, under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing. Buyer Indemnifying Party shall indemnify and hold harmless Seller, the JVs, their respective Affiliates and their respective directors, officers, employees and Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith, in each case other than to the extent any of the foregoing arises from the bad faith, gross negligence or willful misconduct of, or material breach of this Agreement by, Seller, the JVs or their respective Affiliates. Any information provided by Seller in connection with seeking the Financing shall be prepared in good faith. The Buyer shall reimburse Seller for all of the documented reasonable out of pocket costs and expenses incurred by Seller, the JVs or their respective Affiliates in connection with this Section 7.13 on or prior to the Effective Time. In Closing or promptly following the event that all Closing or the termination of this Agreement.
(c) If, notwithstanding the use of commercially reasonable efforts by Buyer to satisfy its obligations under Section 7.13(a), any of the Debt Financing or the Debt Financing Commitments (or any definitive financing agreement relating thereto) expires or is terminated prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify Seller of such expiration or termination and the reasons therefor and (ii) promptly arrange for alternative financing on terms and conditions precedent expressly no less favorable to Buyer (taking into account any “market flex” provisions), in the aggregate, than those set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonCommitments, (iithe “Required Financing Alternative”) Parent becomes aware of any breach or default (A) by any Financing Source party from other sources to replace the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent such expired or terminated commitments or agreements, which Required Financing Alternative shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to be in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate an amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with for the consummation of the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(fd) Notwithstanding anything to the contrary contained hereinin Section 7.13(a), Parent’s obligations hereunder are not subject to a condition regarding Parent’s or at any of its Affiliates’ obtaining time Buyer may replace the Debt Financing with alternative financing arrangements which (i) provide Buyer with sufficient funds to consummate the Merger and the transactions contemplated by this AgreementAgreement prior to or concurrent with the Closing and (ii) do not prevent or materially impair or delay the Closing (together with the Required Financing Alternative, the “Financing Alternative”). In the event Buyer replaces the Debt Financing with any Financing Alternative, the terms of Section 7.13(a) shall no longer apply with respect to the Financing, but shall thereafter apply with respect to the Financing Alternative.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (Chemtura CORP)
Financing. (a) Subject Parent shall not agree to any amendment or modification to, or grant any waiver of, any provision under the Commitment Letter without the prior written consent of the Company if such amendment, modification or waiver would (i) impose additional conditions to the receipt of the Financing on the Closing Date, or otherwise amend or modify any such conditions in a manner that is adverse in any material respect to Parent or the Company, (ii) individually or in the aggregate with all other amendments, modifications or waivers to the Commitment Letter, reasonably be expected to prevent or make less likely to occur the funding of the commitments thereunder on the Closing Date or (iii) reduce the aggregate amount of the available commitments thereunder other than to the extent the representations set forth in Section 4.07(c) would continue to be true after giving effect thereto (the foregoing clauses (i) through (iii), the “Prohibited Changes”); provided that, without the consent of the Company, Parent may amend (it being understood that no such amendment shall constitute a Prohibited Change) the Commitment Letter to add additional lenders, arrangers, bookrunners and agents or to implement or exercise any of the “market flex” provisions contained in any Fee Letter. Notwithstanding the foregoing or any provision of this Agreement to the contrary, Parent shall be entitled to replace the Commitment Letter by entering into definitive documentation with respect to the Financing on or prior to the Closing so long as such definitive documentation is on terms and conditions of this Agreement, consistent with the Commitment Letter and would not result in Prohibited Changes.
(b) Parent shall will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain consummate the Debt Financing on the terms and subject to the conditions described set forth in the Debt Commitment Letter pursuant Letter, including, prior to the terms thereof consummation of the Financing in an aggregate amount that is sufficient (including taken together with any “market flex” provisionscash available to Parent) including for the representation set forth in Section 4.07(c) to continue to be true, using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive documentation entered into in this Section 6.13connection therewith), (Bii) satisfy all conditions in the Commitment Letter (including any definitive documentation entered into in connection therewith) applicable to negotiate Parent and enter Merger Sub to obtaining the Financing thereunder as promptly as practicable (taking into account the expected timing of the Effective Time) (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise comply with its obligations or the accuracy of any of its representations under this Agreement), (iii) as promptly as practicable (taking into account the expected timing of the Effective Time), negotiate, execute, and deliver definitive agreements documentation with respect to the Debt Financing contemplated by the Commitment Letter (the “Debt Financing Agreements”) on the terms and subject to the conditions that are contemplated by the Commitment Letter (or on terms not materially less favorable to Parent and Merger Sub than those contained the terms and conditions (including market flex provisions) set forth in the Debt Commitment Letter and related Fee Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or (v) subject to its influence and, upon the satisfaction of the conditions set forth in the Debt Commitment LetterLetter and Sections 6.01 and 6.02, cause the Financing Sources party thereto to consummate fund the Debt Financing at thereunder on or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeClosing Date. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or If any portion of the Debt Financing contemplated by otherwise becomes unavailable, and such portion is reasonably required to fund the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of aggregate Per Share Merger Consideration and all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received fees and expenses payable by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Merger Sub in connection with the transactions contemplated by this Agreement, (x) Parent and Merger Sub will use their reasonable best efforts to arrange to obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to pay the proceeds of aggregate Per Share Merger Consideration and such debt offerings or other incurrences have been received fees and expenses payable by Parent and Merger Sub. Notwithstanding anything in cashthis Section 5.15 to the contrary, (ysolely to the extent the representations set forth in Section 4.07(c) Parent promptly notifies the Company of such substitution and reduction and (z) shall continue to be true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto Parent will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect the proceeds of consummated equity securities issuances or equity linked, convertible, exchangeable or other financings debt securities issuances or other incurrences of debt for all or any portion of the Debt amount contemplated to be provided by the Bridge Financing from contemplated by the same and/or alternative financing sources so long as Bridge Commitment Letter and may reduce the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid commitments thereunder. Any reference in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) “Financing” will include the conditions precedent set forth in the Debt Commitment LetterBridge Financing and any such alternative, to supplement replacement or replace the Debt Financing (“Alternative Debt Financing”). Truesubstitute financing, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt FinancingCommitment Letter” shall will include the debt financing contemplated by the Debt Bridge Commitment Letter as modified pursuant and the commitment letter, if any, and the corresponding fee letter with respect to clause any such alternative financing or such replacement financing.
(c) Upon the Company’s reasonable request, Parent will keep the Company reasonably informed on a reasonably current basis of the status of Parent’s and Merger Sub’s efforts to arrange the Financing and to satisfy the conditions thereof, including, upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to status of definitive documentation for the Financing and any funding thereof. Parent shall give the Company prompt written notice (i) of any material breach or default, repudiation, or termination of any provisions of the Commitment Letter or definitive documentation relating to the Financing (other than, in the case of the commitments with respect to the Bridge Financing or the Bridge Financing, in accordance with the terms thereof), in each case, by any party thereto, of which Parent becomes aware or (ii) belowif for any reason Parent determines in good faith that it will not be able to obtain all or any portion of the Bridge Financing under the Bridge Commitment Letter on the Closing Date (other than as a result of a reduction in accordance with the terms thereof).
(d) In no event shall the receipt or availability of any funds or financing (including the Financing) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder, it being understood that nothing in this Section 5.15(d) is intended to limit (i) the provision of the Required Information pursuant to Section 2.02 or (ii) any reference condition contained in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSection 6.01 or 6.02.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Ixia)
Financing. (a) Subject Grizzly shall not agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Spinco Commitment Letter and the Spinco Related Letter without the prior written consent of Burgundy (and, to the terms extent Section 8.3 is applicable, such consent is subject to Burgundy’s obligations in Section 8.3), if such amendments, modifications or waivers would reasonably be expected to (i) reduce the aggregate amount of the Spinco Financing below the Below Basis Amount, (ii) impose new or additional conditions to the receipt of the Spinco Financing that would reasonably be expected to (A) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially delay the consummation of the transactions contemplated by this Agreement and conditions the other Transaction Agreements, or (C) materially adversely impact the ability of Grizzly to enforce its rights against the other parties to the Spinco Commitment Letter (provided that for the avoidance of doubt, Grizzly may, without the consent of Burgundy, replace or amend the Spinco Commitment Letter and the Spinco Related Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties, individually or in the aggregate, would not reasonably be expected to prevent or materially delay or impair the availability of financing under the Spinco Commitment Letter and the Spinco Related Letter, obtaining from the IRS the Private Letter Ruling (including the IRS D Reorganization Ruling and the IRS Debt Exchange Ruling) or the consummation of the transactions contemplated by this Agreement, Parent Agreement and the other Transaction Agreements) or (iii) prevent or materially delay obtaining from the IRS the Private Letter Ruling (including the IRS D Reorganization Ruling and the IRS Debt Exchange Ruling). Grizzly and Merger Sub shall each use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Spinco Financing on the terms and conditions described in or contemplated by the Debt Spinco Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) Spinco Related Letter, including using its reasonable best efforts to seek to enforce its rights under (1) maintain in effect the Debt Spinco Commitment Letter and the Spinco Related Letter, (2) satisfy on a timely basis (taking into account the expected timing of the Marketing Period) all conditions and covenants applicable to Grizzly in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Spinco Commitment Letter if such amendmentand the Spinco Related Letter and otherwise comply with its obligations thereunder, supplement, replacement, modification or waiver (A3) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on enter into definitive agreements substantially concurrently with the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Spinco Debt Financing Agreements”) on the terms and conditions that are not materially contemplated by the Spinco Commitment Letter and the Spinco Related Letter (or terms and conditions (including the flex provisions) no less favorable to Parent than those contained Grizzly and Spinco (in the Debt reasonable discretion of Grizzly) than the terms and conditions in the Spinco Commitment Letter and the Spinco Related Letter), (C4) to satisfy on a timely basis (or obtain in the waiver of)event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Spinco Financing at or prior to the Closing, (D5) to comply with enforce its obligations rights under the Debt Spinco Commitment Letter, Letter and the Spinco Related Letter and (E6) to consummate the Debt Financing at or prior to the Effective Time. In in the event that all conditions precedent expressly set forth in the Debt Spinco Commitment Letter and the Spinco Related Letter have been orsatisfied, upon funding cause the lenders providing the Spinco Financing to fund the Spinco Financing. Grizzly shall (x) furnish to Burgundy complete, correct and executed copies of the Spinco Debt Financing will beAgreements, satisfied(y) give Burgundy prompt notice of any material breach by any party of the Spinco Commitment Letter or the Spinco Related Letter or the Spinco Debt Financing Agreements of which Grizzly becomes aware or any termination thereof and (z) upon Burgundy’s request, Parent otherwise keep Burgundy reasonably informed of the status of Grizzly’s efforts to arrange the Spinco Financing (or any replacement thereof) and Sub the other financing transactions contemplated by this Agreement (or any replacement thereof). If any portion of the Spinco Financing becomes unavailable on the terms and conditions contemplated in the Spinco Commitment Letter and the Spinco Related Letter (including the flex provisions) from sources contemplated in the Spinco Commitment Letter and the Spinco Related Letter, Grizzly and Spinco shall use their reasonable best efforts to enforce their rights underarrange and obtain alternative debt financing from alternative debt sources for the same purposes as the purposes of the Spinco Financing in an amount not less than the Below Basis Amount upon terms and conditions not less favorable, taken as a whole, to Grizzly and cause Spinco (in the Financing Sources, lenders and reasonable discretion of Grizzly) than those in the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Spinco Commitment Letter and definitive financing agreements and to fund on or before the Effective Time Spinco Related Letter as promptly as practicable following the Debt Financing. Parent shall keep the Company informed on a current basis and in occurrence of such event, including using reasonable detail of the status of its best efforts to arrange the Debt Financingenter into definitive agreements with respect thereto. Further, andGrizzly may, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without with the prior written consent of Burgundy (which consent shall not be unreasonably withheld, conditioned or delayed), if it so determines in its discretion, arrange for alternative financing for the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Spinco Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing area third party or parties (and, in respect of certainty of fundingsuch instance, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement references herein to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.Spinco
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, necessary or advisable or proper to arrange and obtain the Debt Financing as promptly as practicable following the Original Date and to consummate the Financing on or prior to the terms and conditions described in Closing Date, including commercially reasonable efforts with respect to the following (provided that Buyer shall not be required to take any of the actions specified below with respect to the Debt Commitment Letter pursuant Letters if alternative Debt Financing is obtained so long as such alternative Debt Financing would not reasonably be expected to (x) materially delay or prevent the terms thereof Closing, or (including y) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur):
(i) (A) maintaining in effect the Commitment Letters, and (B) not permitting any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement amendment or modification to be made to, or not consenting to any waiver of any provision or remedy under, the Debt and not replacing, any Commitment Letter Letter, if such amendment, supplementmodification, replacement, modification waiver or waiver replacement (AI) reduces the aggregate amount of the cash proceeds from Debt Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any unless as part of the conditions to relevant amendment, modification, waiver or replacement there is a corresponding increase in the receipt of the Debt Equity Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that (II) would reasonably be expected to (x) materially delay or prevent the Closing, or (y) in such a way that would make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on less likely to occur. Notwithstanding the Closing Dateforegoing, Buyer may modify, restate, supplement, amend or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend and restate the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents, co-agents, other agents or similar entities so long that have not executed the Debt Commitment Letter as such action would not reasonably be expected of the Original Date or to delay or prevent increase the Closing). Parent amount of funds available thereunder (and Buyer shall promptly deliver to the Company true, complete and correct copies of any such amendment, restatements, supplementation, modification or replacementwaiver of the Debt Commitment Letter to Seller);
(ii) complying in all material respects with its obligations under the Commitment Letters;
(iii) participation by senior management of Buyer in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
(iv) causing the Financing to be consummated on or prior to the Closing;
(v) satisfying on a timely basis all Financing Conditions or other conditions applicable to Buyer in the Commitment Letters that are within its control;
(vi) negotiating, executing and delivering any documents required by the Commitment Letters (including any “market flex” provisions related thereto) and providing copies thereof to Seller;
(vii) borrowing under and using the proceeds of the Debt Financing and using the proceeds of the Equity Financing to finance, in part, the Closing Date Payments and complying with any requirements to obtain such Debt Financing and Equity Financing; and
(viii) enforcing its rights under the Commitment Letters in the event of a Financing Failure Event; provided, that Buyer will not be required to take legal action against any Financing Source.
(b) Parent shall, Buyer shall consult with and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company Seller reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request . Buyer shall give Seller prompt notice of any actual or threatened breach or repudiation by the Company, provide any Party to the Company copies Commitment Letters of all executed Debt Financing Agreements.
(c) which Buyer or its Affiliates becomes aware. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business DaysBuyer’s other obligations under this Section 5.18, if at any time prior to the Closing Date a Financing Failure Event occurs, Buyer shall (i) promptly (within one (1) calendar day) notify Seller of such Financing Failure Event and the Debt Commitment Letter is terminated for any reasonreasons therefor, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party in consultation with Seller use its commercially reasonable efforts to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifobtain alternative financing from alternative financing sources, in the case of this clause (B), such breach or default would reasonably be expected an amount sufficient to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to make the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash Date Payments and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with consummate the transactions contemplated by this Agreement, (x) as promptly as practicable following the proceeds occurrence of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectevent, and (iii) any reference in this Agreement use its commercially reasonable efforts to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter obtain, and when obtained, provide Seller with a copy of, a replacement financing commitment that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectprovides for such alternative financing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Jacobs Engineering Group Inc /De/)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Commitments, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Commitments if such amendment, supplement, replacement, modification or waiver would (Ai) reduces reduce the aggregate amount of the cash proceeds from Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Financing unless the Equity Financing is increased by a corresponding amount), or (Bii) imposes impose new or additional conditions to the initial funding conditions, or otherwise expands amend, modify or expand any of the conditions conditions, to the receipt of the Debt Financing, in any such case of (i) or otherwise expands(ii) above, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) delay or prevent the Closing, (B) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yC) adversely affect impact the ability of Parent or Merger Sub or, with respect to the Equity Financing, the Company to enforce its rights against the other parties to the Debt Commitment Letter Financing Commitments or the definitive agreements with respect thereto thereto, the ability of Parent or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions.
(providedb) Notwithstanding anything in Section 5.17(a) to the contrary, that Parent and Merger Sub may (i) amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement, or (ii) otherwise amend or replace the Debt Commitment Letter so long as as: (x) such action would not reasonably be expected to delay or prevent the Closing), (y) the terms are not, taken as a whole, materially less beneficial to Parent or the Company than those in the Debt Commitment Letter as in effect on the date of this Agreement, and (z) with respect to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing Commitment set forth below. Parent shall promptly deliver Notwithstanding anything in Section 5.17(a) to the Company truecontrary, complete Parent may enter into discussions regarding, and correct copies may enter into arrangements and agreements relating to, the Equity Financing to add other equity providers, on the condition that such arrangements or agreements: (i) do not reduce the aggregate amount of the Equity Financing, (ii) do not impose terms or conditions that would reasonably be expected to delay or prevent the Closing, and (iii) with respect to any such amendmentequity provider, modification or replacementsuch equity provider enters into an Equity Commitment Letter on substantially the same terms and conditions as the Equity Commitment Letters then in effect.
(bc) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts to: (Ai) to maintain in effect the Debt Commitment Letter Financing Commitments (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive agreements entered into in this Section 6.13connection with any such Financing Commitments), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment LetterLetter or consistent in all material respects with the Debt Commitment Letter (such definitive agreements, together with the Financing Commitments, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of such definitive agreements to the Company, (Ciii) to satisfy on a timely basis all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing, (or obtain the waiver of), and in a manner that will not impede the ability of the parties to iv) consummate the Merger, all conditions to receipt of the full amount of Equity Financing and the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to substantially concurrently with the Closing, and (Dv) to comply with fully enforce the counterparties’ obligations and its obligations rights under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingAgreements. Parent shall keep the Company reasonably informed on a current timely basis and in reasonable detail of the status of its Parent’s and Merger Sub’s efforts to arrange the Debt FinancingFinancing and to satisfy the conditions thereof, andincluding, promptly following request by upon Company’s reasonable request, (i) advising and updating the Company, provide in a reasonable level of detail, with respect to status, proposed Closing Date and material terms of the Company material definitive documentation for the Financing and (ii) providing copies of then current drafts of all executed Debt Financing Agreementssuch definitive documentation.
(cd) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter on the terms set forth therein. applicable Financing Agreements, (i) Parent shall promptly provide any information reasonably requested by notify the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
and (dii) Parent shall have use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the right to substitute the net cash proceeds received by Parent after the date hereof Transactions with terms and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does conditions not result in materially less favorable, taken as a breach or default underwhole, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies Merger Sub and the Company of such substitution than the terms and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt applicable Financing Agreements (“Alternative Debt FinancingFinancing Commitments”). True, correct and complete copies of each alternative financing commitment in respect ) as promptly as practicable following the occurrence of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Companyevent. In the event any New Debt Commitment Letter is obtainedsuch event, (i) any reference in this Agreement to the term “Debt Financing” as used in this Agreement shall be deemed to include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowany Alternative Financing Commitments, (ii) any reference in the term “Financing” shall be deemed to include the Equity Financing and the Debt Financing as modified by clause (i) of this Agreement to sentence, (ii) the term “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter any commitment letters with respect to the extent then in effectAlternative Financing Commitments and any related fee letters, and (iiiiv) any reference in this Agreement to the term “fee letterFinancing Agreements” shall be deemed to include any fee letter relating definitive agreement with respect to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectAlternative Financing Commitments.
(e) On the Closing DateNotwithstanding anything contained in this Section 5.17 or in any other provision of this Agreement, in no event shall Parent shall provide all funds or Merger Sub be required to effect amend or waive any of the repayment terms or conditions hereof or of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)Financing Agreements.
(f) Notwithstanding anything Parent acknowledges and agrees that obtaining the Financing (including any Alternative Financing Commitments) is not a condition to the contrary contained hereinClosing, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of and reaffirms its Affiliates’ obtaining funds obligation to consummate the Merger Transactions irrespective and independently of the transactions contemplated by this Agreementavailability of the Financing, subject to the satisfaction of the applicable conditions set forth in Section 6.1 and Section 6.2.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Financing Letters (including any applicable lender flex provisions contained in any related fee letter) and shall not permit any amendment or modification (including any replacement of any portion of the Debt Commitment Letter Financing as a result of Acquisition Sub’s election to issue a portion of the Debt Financing with mezzanine notes as provided pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under of the Debt Commitment Financing Letter as in effect as of the event of a breach thereof by the financing provider(sdate hereof) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Letters, if such amendment, supplement, replacement, modification or waiver (Ax) reduces the aggregate amount of the cash proceeds from the Debt Financing or (By) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (xI) delay or prevent the Merger, (II) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yIII) adversely affect the ability of Parent Parent, Acquisition Sub or the Company, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto (thereto; provided, that Parent and Acquisition Sub may (i) amend the Debt Commitment Financing Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Letter as of the date of this Agreement or (ii) otherwise replace or amend the Debt Financing Letter so long as (x) such action would not reasonably be expected to delay or prevent the Closing), (y) the terms are not materially less beneficial to Parent or Acquisition Sub, with respect to conditionality, than those in the Debt Financing Letter as in effect on the date of this Agreement and (z) otherwise satisfies the terms and conditions of a New Debt Commitment Letter as set forth in the third sentence of Section 6.4(b) below. Parent shall promptly deliver Notwithstanding anything to the Company truecontrary in this Agreement, complete Parent and correct copies Acquisition Sub may enter discussions regarding, and may enter into arrangements and agreements relating to the Financing to add other equity providers, so long as in respect of any such amendmentarrangements and agreements, modification the following conditions are met: (i) the aggregate amount of the Equity Financing is not reduced, (ii) the arrangements and agreements, in the aggregate, would not be reasonably likely to delay or replacementprevent the Closing and (iii) the arrangements and agreements would not diminish or release the pre-Closing obligations of the parties to the Equity Financing Letters, adversely affect the rights of Parent to enforce its rights against the other parties to the Equity Financing Letters or otherwise constitute a waiver or reduction of Parent’s rights under the Equity Financing Letters.
(b) Each of Parent shall, and Acquisition Sub shall cause its Affiliates and Representatives to, use its reasonable best efforts (AI) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Financing Letters, (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (CII) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the Debt Financing at or prior to the ClosingClosing (taking into account the expected timing of the Marketing Period), (DIII) to comply with its obligations under the Debt Commitment LetterFinancing Letters, and (EIV) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their its rights under, and cause under the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingLetters. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, Financing and provide to the Company copies of all executed definitive documents related to the Financing (provided that any fee letter related to the Financing shall be provided in a redacted form). If any portion of the Debt Financing Agreements.
becomes unavailable on the terms and conditions contemplated in the Debt Financing Letter (cincluding any applicable lender flex provisions contained in any related fee letter) or the Debt Financing Letter shall be terminated or modified in a manner materially adverse to Parent or Acquisition Sub for any reason, Parent shall make reasonable inquiries over the ensuing twenty (20) Business Days to obtain alternative financing from banks of nationally recognized standing which customarily provide leverage financing for transactions similar to the transactions contemplated by this Agreement on terms not materially less favorable to Parent or Acquisition Sub as those contained in the Debt Financing Letter and in an amount not less than the aggregate amount of Debt Financing provided for in the Debt Financing Letter as in effect on the date of this Agreement (“Alternate Financing”) and, if available, use reasonable best efforts to obtain such Alternative Financing and, if obtained, will provide the Company with a copy of, a new financing commitment letter that (I) provides for at least the same amount of financing as provided under the Debt Financing Letter originally issued, (II) does not impose new or additional conditions that were not contained in the Debt Financing Letter originally issued, or otherwise expands, amends or modifies any of the conditions that were contained in the Debt Financing Letter originally issued to the receipt of the Financing in a manner reasonably expected to (x) delay or prevent the Merger, (y) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur, and (III) on terms and conditions not materially less favorable to Parent or Acquisition Sub than those included in the Debt Financing Letter originally issued (the “New Debt Financing Letter”). To the extent applicable, each of Parent and Acquisition Sub shall use its reasonable best efforts (I) to maintain in effect the New Debt Financing Letter, (II) to satisfy all conditions to the definitive agreements with respect to and consummate the Alternate Financing at or prior to the Closing (taking into account the expected timing of the Marketing Period), (III) to comply with its obligations under the New Debt Financing Letter, and (IV) to enforce its rights under the New Debt Financing Letter. Without limiting the generality of the foregoing, Parent agrees to notify and Acquisition Sub shall give the Company promptly, as promptly as reasonably practicable notice and in any event within two (2) Business Days, if at any time prior to the Closing Date : (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default by any party to any Financing Letters or definitive document related to the Financing of which Parent and Acquisition Sub become aware; (ii) of the receipt of any written notice or other written communication from any Financing source with respect to any: (A) breach, default, termination or repudiation by any Financing Source party to the Debt Commitment Letter any Financing Letters or any Debt definitive document related to the Financing Agreement of any provisions of the Financing Letters or any definitive document related to the Financing or (B) material dispute or disagreement between or among any other party parties to any Financing Letters or any definitive document related to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or Financing; and (iii) a counterparty indicates if for any reason Parent or Acquisition Sub believes in writing or orally good faith that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on Financing Letters or the terms set forth thereindefinitive documents related to the Financing. As soon as reasonably practicable, but in any event within two (2) Business Days of the date the Company delivers Parent or Acquisition Sub a written request, Parent and Acquisition Sub shall promptly provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, clause (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below), (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and or (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to of the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectimmediately preceding sentence.
(ec) On Parent and Acquisition Sub shall use their reasonable best efforts to cause the lenders and any other Persons providing Financing to fund on the Closing Date, Parent shall provide all funds Date (taking into account the expected timing of the Marketing Period) the Financing required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the other transactions contemplated by this Agreement if all conditions to closing contained in Article VIII are satisfied or waived (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions).
(d) For purposes of this Agreement, “Marketing Period” shall mean the first period of thirty (30) consecutive calendar days after the date Parent and its financing sources have received from the Company the Required Information.
Appears in 1 contract
Samples: Merger Agreement (infoGROUP Inc.)
Financing. (a) Subject Without the Company’s prior written consent (which shall not be unreasonably withheld), Parent shall not agree to any material amendment or modification to be made to the Financing Commitments; provided, that Parent may replace, amend or modify any term of the Financing Commitments, without the Company’s consent, (x) to modify the pricing terms and or to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Financing Commitments as of the date hereof or (y) if such replacement, amendment or modification would not reduce the amount of aggregate cash proceeds available from the Financing to less than required to consummate the Merger or impose new or additional conditions precedent that would reasonably be expected to adversely impact the ability of Parent to enforce its rights against the other parties to the Financing Commitments or that materially delay or impair the ability of Parent to consummate the transactions contemplated by this Agreement, . Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper necessary to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof Financing Commitments (including any “market flex” provisions) the flex provisions therein, but not in excess or outside of such provisions unless so agreed by Parent, and taking into account the anticipated timing of the Marketing Period), including using its reasonable best efforts to seek to enforce its rights under (i) satisfy, perform and observe on a timely basis (taking into account the Debt Commitment Letter expected timing of the Marketing Period) all conditions and covenants within Parent’s control in the event of a breach thereof by the financing provider(s) Financing Commitments and otherwise comply in all material respects with its obligations thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are (including the flex provisions but not materially less favorable to Parent than those contained in excess or outside such flex provisions unless so agreed by Parent) contemplated by the Debt Commitment Letter, Financing Commitments and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment LetterFinancing Commitments, to consummate the Debt Financing at or prior to Closing. Without limiting the Closinggenerality of the foregoing, Parent shall give the Company prompt notice: (DA) of any breach or default or threatened breach or default by any party to comply with its obligations under any Financing Commitment, in each case, of which Parent becomes aware, if such breach or default would reasonably be expected to result in a material delay of the Debt Commitment Letter, Closing Date; and (EB) of the receipt of any written notice or other written communication from any Person with respect to any breach or default or threatened breach, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of the Financing Commitments or any definitive document related to the Financing. If any portion of the Financing becomes unavailable on the terms and conditions (including the flex provisions but not in excess or outside such flex provisions unless so agreed by Parent) contemplated in the Financing Commitments in effect on the date hereof so as not to enable Parent to proceed with the Merger in a timely manner, Parent shall use its reasonable best efforts to arrange and obtain, as promptly as practicable following the occurrence of such event, alternative financing from the same or alternative sources (provided, that if Alternative Financing (as defined herein) is not available from the same sources, then Parent shall use its reasonable best efforts to arrange and obtain Alternative Financing from alternative sources) in an amount sufficient, when added to the portion of the Financing being replaced that is still available, to consummate the Debt Financing at transactions contemplated by this Agreement and on terms and conditions that are no less favorable to Parent, taken as a whole (taking into account any flex provisions, but not in excess or prior to the Effective Time. In the event that all conditions precedent expressly outside of such flex provisions unless so agreed by Parent), than those set forth in the Debt Commitment Letter have been or, upon funding Financing Commitments in effect on the date hereof (“Alternative Financing”); provided that the “effective yield” in respect of the Debt Alternative Financing will bemay exceed the “effective yield” in respect of the Financing Commitments in effect as of the date hereof (including any flex provision) but by no more than fifty (50) basis points (unless so agreed by Parent). Notwithstanding anything herein to the contrary, satisfied, Parent and Sub in no event shall use their the reasonable best efforts of Parent be deemed or construed to enforce their rights underrequire Parent to, and Parent shall not be required to, (1) pay any fees in excess of those contemplated by the Financing Commitments, (2) agree to any economic provision that is outside of, or less favorable than, any applicable economic provision of the Financing Commitments or any related fee letter (including any flex provision therein) or (3) initiate any enforcement action to cause the Financing Sources, lenders and or other parties providing the other persons providing or committing to provide the Debt Financing to comply fund such Financing; provided that, clauses (1) (solely with their obligations under respect to any upfront fees or original issue discount) and (2) shall apply only to the Debt Commitment Letter and definitive financing agreements and to fund on or before extent that the Effective Time “effective yield” in respect of any Alternative Financing exceeds the Debt Financing“effective yield” in respect of the Financing Commitments in effect as of the date hereof (including any flex provision therein) by more than fifty (50) basis points. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the “Debt Financing” and “Financing Commitments” shall include the debt financing contemplated by the Debt Financing Commitments on the date hereof, as permitted to be amended, modified or replaced (in whole or in part) by this Section 5.12(a), including any Alternative Financing. For purposes hereof, in calculating the “effective yield” under the Financing Commitments as in effect on the date hereof or any Alternative Financing, (x) upfront fees and original issue discount (each converted to yield assuming a four-year average life and without any present value discount), interest rate spreads and interest rate benchmarks floors will be taken into account and (y) the effect of any arrangement, structuring, syndication or other fees payable in connection therewith that are not shared with all lenders or holders of such Alternative Financing and any fluctuations in LIBOR or comparable rate will be excluded.
(b) Prior to the Closing, the Company shall use reasonable best efforts to provide to Parent, at Parent’s sole expense, all reasonable cooperation reasonably requested by Parent in connection with the Financing, including:
(i) furnishing Parent and its Financing Sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent or the lenders under the Commitment Letter as modified pursuant to in connection with the Financing, including financial statements (including the financial statements set forth in clause (ii) below) (which, with respect to annual financial statements, shall have been audited and, with respect to interim financial statements, shall have been reviewed by the independent accountants for the Company as provided in Statement on Auditing Standards No. 100), pro forma financial statements of the Company (provided that it is understood that the preparation of combined pro forma financial information and the assumptions underlying the pro forma adjustments to be made are the responsibility of Parent), business and other financial data of the type and form required by Regulation S-X and Regulation S-K under the Securities Act and of type and form customarily included in a registration statement on Form S-1 under the Securities Act for a public offering of the debt securities contemplated by the Commitment Letter, assuming that such offering was consummated at the same time during the Company’s fiscal year as the offering of debt securities contemplated by the Commitment Letter (other than consolidating financial statements; provided that customary data as to the total assets, revenue, EBITDA and adjusted EBITDA of non-guarantor Subsidiaries shall be provided), all other data that would be necessary for the underwriter to such offering of the debt securities contemplated by the Financing Commitments to receive customary “comfort” (including “negative assurance” comfort) from the Company’s independent accountants in connection with such offering of the debt securities contemplated by the Financing Commitments, and reasonable and customary authorization letters to the financing sources authorizing the distribution of information to prospective lenders and containing customary information;
(ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded furnishing Parent and its Financing Sources as promptly as reasonably practicable with (A) by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter date that is not superseded by later than forty-five (45) calendar days after the end of any New Debt Commitment Letter at fiscal quarter after the time in question and each New Debt Commitment Letter date hereof that is not a fiscal year end, the unaudited consolidated balance sheet of the Company as of the end of such subsequent quarterly period ended no less than forty-five (45) calendar days prior to the extent then in effect.
Closing Date and the related unaudited statements of income and cash flows and (eB) On by a date that is not later than ninety (90) calendar days after the end of any fiscal year, the audited consolidated balance sheet of the Company as of the end of such fiscal year ended not less than ninety (90) days prior to the Closing Date, Parent shall provide all funds required and the related audited statements of income and cash flows for the year then ended, and the notes and schedules thereto (the information described in clauses (i) and (ii) of this Section 5.12(b) being collectively referred to effect as the repayment “Required Information”);
(iii) participating in a reasonable number of all indebtedness under meetings (including customary one-on-one meetings with the parties acting as lead arrangers or agents for, and prospective lenders and purchasers of, the financing and senior management and Representatives, with appropriate seniority and expertise, of the Company Credit Agreement and its Subsidiaries), presentations, road shows, due diligence sessions, drafting sessions and sessions with rating agencies in full in accordance connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii)financing.
(fiv) Notwithstanding anything facilitating the pledging of collateral and perfection of security interests (including obtaining customary payoff letters, lien releases and instruments of termination or discharge) as required by the Commitment Letters, including executing and delivering any customary collateral documents and other customary documents and certificates as may be reasonably requested by Parent and cooperating and assisting Parent in obtaining customary legal opinions, appraisals, surveys, title insurance, other certifications and documents as reasonably required by the Financing Sources for financings similar to the contrary contained hereinFinancing, Parent’s obligations hereunder are not subject and cooperating with and assisting Parent in connection with obtaining such items;
(v) assisting with the preparation of materials for rating agencies and rating agency presentations, bank information memoranda, offering documents (including assistance in the preparation of pro forma financial statements giving effect to the transactions hereunder), private placement memoranda and similar documents required in connection with the Financing;
(vi) facilitating the execution and delivery at the Closing of definitive Financing documents by the Company and its Subsidiaries and all other customary documents in connection therewith, including pledge and security agreements, mortgages, guarantees, filings and certificates as reasonably required in connection with the Financing (including a condition regarding Parent’s certificate of the Chief Financial Officer of the Company or any of its Affiliates’ obtaining funds Subsidiaries with respect to consummate solvency matters and consents of independent accountants for the Merger use of their reports in any materials relating to the Financing, provided that any obligations contained in such documents shall be effective no earlier than as of the Closing);
(vii) using reasonable best efforts to cooperate with Parent to satisfy the conditions precedent to the Financing to the extent within the control of the Company and causing the transactions contemplated taking of corporate actions by this Agreementthe Company and its Subsidiaries reasonably necessary to permit the completion of the Financing; provided, that (i) the foregoing shall not require such cooperation to the extent that it would interfere unreasonably with the business or operation of the Company or its Subsidiaries, and (ii) neither the Company nor any of its Subsidiaries shall be required to commit to take any action (including the payment of any commitment or other fee or the incurrence of any liability prior to the Effective Time to the extent not reimbursed by Parent pursuant to Section 5.12(c)) that is not contingent upon the Closing (including the entry into any agreement) or that would be effective prior to the Closing Date.
(c) Parent shall, upon written request of the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred in good faith by the Company and its Subsidiaries in connection with their obligations pursuant to Section 5.12(b) prior to the Closing. Parent shall indemnify, defend and hold harmless the Company and its Subsidiaries and Representatives from and against any and all Losses suffered or incurred by them in connection with the arrangement of the Financing or providing any of the information utilized in connection therewith, except to the extent resulting from the gross negligence, willful misconduct or bad faith of any such Persons.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to takeobtain, or cause to be takenobtained, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made with respect to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain maintaining in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letters, (Bii) to negotiate and enter into negotiating definitive agreements with respect to the Debt Commitment Letter Financing (the “Debt Financing Definitive Agreements”) on consistent in all material respects with the terms and conditions that are not materially less favorable to Parent than those contained therein (including, as necessary, the “flex” provisions contained in the Debt Commitment Fee Letter) or, if available, on other terms that are acceptable to Parent and would not adversely affect (Cincluding with respect to timing, taking into account the expected timing of the Marketing Period) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties Parent to consummate the Merger, transactions contemplated herein and (iii) satisfying all conditions applicable to receipt of Parent and its Subsidiaries to obtaining the full amount of the Debt Financing at the Closing set forth therein that are within its control Parent or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeMerger Sub’s control. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter and Definitive Agreements have been or, satisfied (or upon funding of the Debt Financing will be, be satisfied), Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under, and timely cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and Lenders to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreementsas applicable.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (iib) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent and Merger Sub shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take (i) terminate any action Commitment Letter, unless such Commitment Letter is replaced in a manner consistent with the following clause (ii), or enter into (ii) permit any transaction that would reasonably be expected to materially impairamendment or modification to, delay or prevent consummation of all or any portion waiver of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings any material provision or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default remedy under, or violation ofreplace, the Debt Commitment LetterLetters if such amendment, modification, waiver, or replacement (wA) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, would (x1) the proceeds of such debt offerings add any new (or other incurrences have been received by Parent in cash, (yadversely modify any existing) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification condition to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all Financing Commitments or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not otherwise adversely affect the enforceability, availability ability of Parent or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided Merger Sub to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to timely consummate the Merger and the transactions contemplated by this Agreement.contemplated
Appears in 1 contract
Samples: Merger Agreement (Pike Corp)
Financing. (a) Subject Each of Parent and Merger Sub shall use its best efforts to complete the Financing on the terms and conditions described in the Financing Commitments as promptly as practicable but in any event on or before the Outside Date, including using its best efforts to (i) negotiate definitive agreements with respect thereto (A) on the terms and conditions contained in the Financing Commitments or (B) on other terms and conditions that (1) are no less favorable to Parent and Merger Sub taken as a whole, (2) do not impose any conditions other than those set forth in the Debt Financing Commitments (the “Debt Financing Conditions”) or set forth in the Equity Commitment Letter, as applicable, or adversely change in any material respect any Debt Financing Condition or condition set forth in the Equity Commitment Letter, as applicable, and (3) would not reasonably be expected to prevent, materially delay or materially impair the ability of this AgreementParent or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent and/or Merger Sub in such definitive agreements that are within their control and (iii) not permit any amendment or modification to be made to, or any waiver of, any material provision or remedy under the Financing Commitments, if such amendment, modification or waiver (A) imposes any new or additional conditions or adversely changes in any material respect any Debt Financing Condition or condition set forth in the Equity Commitment Letter or (B) would reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date.
(b) If all or a portion of the Financing becomes unavailable in accordance with the terms of the Financing Commitments, then (i) Parent shall notify the Company promptly and (ii) Parent and Merger Sub shall use its their respective reasonable best efforts to obtain any such portion from alternative sources as promptly as practicable following the occurrence of such event, on terms that (A) are no less favorable than those in the Financing Commitments to Parent and Merger Sub taken as a whole and (B) would not reasonably be expected to prevent, materially delay or materially impair the ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date (the “Alternative Financing”), and to obtain a new financing commitment letter related to such Alternative Financing (the “Alternative Financing Commitment”). If applicable, each of Parent and Merger Sub shall use their respective best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange promptly and obtain consummate the Debt Alternative Financing on the terms and conditions described in the Debt Alternative Financing Commitment Letter pursuant to as promptly as practicable but in any event on or before the terms thereof (including any “market flex” provisions) Outside Date, including using its reasonable best efforts to seek (i) negotiate definitive agreements with respect to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made toAlternative Financing (such definitive agreements, or any waiver of any provision underdefinitive agreements entered into under Section 7.08(a), the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver “Financing Agreements”) (A) reduces on the aggregate amount of terms and conditions contained in the cash proceeds from the Debt Alternative Financing Commitment or (B) imposes on other terms and conditions that (1) are no less favorable to Parent and Merger Sub taken as a whole, (2) do not impose any new or additional conditions to the initial funding conditions, or otherwise expands adversely change in any of the conditions material respect any existing conditions, to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of Alternative Financing as set forth in the Debt Commitment Letter in a manner that would reasonably be expected to Alternative Financing Commitments and (x3) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to prevent, materially delay or prevent materially impair the Closing)ability of Parent or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub in such definitive agreements that are within their control, and (iii) upon satisfaction of such conditions, to use their best efforts to cause the funding of such Alternative Financing.
(c) Parent and Merger Sub shall, and shall use their best efforts to cause their Representatives to, comply in all material respects with the terms of the Financing Commitments, any Alternative Financing Commitment, the Financing Agreements and any related fee and engagement letters. Parent shall promptly deliver (i) furnish to the Company truecomplete, complete correct and correct executed copies of any such amendmentthe Financing Agreements promptly upon their execution and (ii) otherwise keep the Company reasonably informed of the status of Parent’s efforts to arrange the Financing or the Alternative Financing, modification or replacementas applicable, including providing to the Company copies of Financing Agreements in substantially final form following the negotiation thereof.
(bd) Parent shallPrior to the Effective Time, the Company, acting through the Special Committee if then in existence or otherwise by resolution of a majority of Disinterested Directors, shall provide, and shall cause its Affiliates and Representatives subsidiaries to, and shall use its reasonable best efforts (A) to maintain cause their respective Representatives, including legal and accounting, to, provide all cooperation reasonably requested by Parent in effect connection with the Debt Commitment Letter Financing or any Alternative Financing, including, without limitation: (provided that the Debt Commitment Letter may be amendedi) reasonable participation in a reasonable number of meetings, supplementedpresentations, replaceddue diligence sessions, modified or waived as provided in this Section 6.13)drafting sessions, (B) to negotiate road shows and enter into definitive agreements sessions with rating agencies with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of definitive financing arrangements for the Debt Financing at or any Alternative Financing; (ii) assistance with the Closing set forth therein that are within preparation of customary materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses, business projections and financial statements (including those required by the SEC) and similar documents required in connection with the Debt Financing or any Alternative Financing; (iii) execution and delivery of any pledge and security documents and other similar documents, other definitive financing documents, and other certificates and documents to be executed and delivered by the Company or any of its control or subject to its influence and, upon satisfaction subsidiaries as may be reasonably requested by Parent (including a certificate of the conditions set forth chief financial officer of the Company or any subsidiary with respect to solvency matters) and otherwise facilitate the pledging of collateral, in each case so long as not effective until on or after the Effective Time; (iv) furnishing Parent and its Debt Commitment LetterFinancing or Alternative Financing sources with readily-available historical financial and other pertinent information regarding the Company as may be reasonably requested by Parent, including all historical financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A under the Securities Act, to consummate the Debt Financing at or prior any Alternative Financing transaction executed in connection with the Transactions; (v) using best efforts to assist Parent in obtaining accountants’ comfort letters, legal opinions, surveys and title insurance as may be reasonably requested by Parent or the Closing, (D) to comply with its obligations lenders under the Debt Commitment Letter, and Financing Commitments or any Alternative Financing Commitment; (Evi) to consummate permit the prospective lenders involved in the Debt Financing at or any Alternative Financing to evaluate the Company’s current assets and cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements; (vii) so long as not effective until on or after the Effective Time, establish bank and other accounts and blocked account agreements and lock box arrangements in connection with any such collateral arrangements; and (viii) taking all corporate actions, subject to the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of the Debt Financing or any Alternative Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time. The Company shall cause its officers, in their capacities as officers, to deliver such customary management representation letters as any audit firm may request in connection with any comfort letters or similar documents required in connection with the Debt Financing or any Alternative Financing. The Company hereby consents to the use of its and its subsidiaries’ logos in connection with the Debt Financing or any Alternative Financing, provided that such logos are used in a manner that is not intended to nor reasonably likely to harm or disparage the Company or the reputation or goodwill of the Company or any of its subsidiaries and its or their marks. Nothing contained in this Section 7.08 or otherwise shall require the Company to be an issuer or other obligor with respect to the Debt Financing or any Alternative Financing prior to the Effective Time. In the event that all conditions precedent expressly set forth Nothing contained in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub this Section 7.08 or otherwise shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep require the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide pay any Transaction Costs related to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses any Alternative Financing other than the Transaction Costs related to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in such cooperation under this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii7.08(d).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Equity Financing on the terms and conditions described set forth in the Debt Equity Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using its commercially reasonable best efforts to seek (i) maintain in effect the Equity Commitment Letters until the Merger and the other transactions contemplated by this Agreement are consummated, (ii) satisfy or cause to enforce its rights under the Debt Commitment Letter be waived on a timely basis all conditions applicable to Parent set forth in the event Equity Commitment Letters or such definitive agreements that are within its control and otherwise comply with its obligations thereunder and (iii) upon the satisfaction or waiver of a breach thereof by such conditions, consummate the Equity Financing to the extent, and in the amount required, necessary to consummate the Merger and the Transactions; provided, that nothing herein shall prevent Parent from replacing all or any portion of the Equity Financing provided for in the Equity Commitment Letters with one or more commitments from Persons to provide an equal or greater amount of financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made toavailable on or prior to the Closing Date with conditionality no less favorable to Parent in any material respect than that provided for in the Equity Commitment Letters, and upon any such replacement, the definition of "Equity Commitment Letters" set forth in this Agreement shall be deemed to have been modified as appropriate to reflect such replacement debt or equity financing and any related commitment letter.
(b) Parent shall not amend, modify or waive, or agree to amend, modify or waive (in any waiver case, whether by action or inaction), any term of any provision under, the Debt either Equity Commitment Letter without the prior written consent of the Company if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from Equity Financing available on the Debt Financing Closing Date to pay the aggregate Merger Consideration, the aggregate Conversion Amount, the aggregate Warrant Consideration and the aggregate Black-Scholes Value (unless, in the case of this clause (i), such amount is fully replaced with an amount of new financing with conditionality no less favorable to Parent in any material respect), or (Bii) imposes new or additional conditions to the initial funding or otherwise expands amends or modifies any of the conditions precedent to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Equity Financing in a manner that would reasonably be expected to (x) materially delay or prevent the Closing, (y) make the timely funding in full of the Debt Equity Financing (or satisfaction of the conditions precedent to obtaining the Debt Financing) on the Closing Date, Equity Financing less likely to occur or (yz) adversely affect impact the ability of Parent to enforce its rights against any other parties party to the Debt Equity Commitment Letter Letters or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of in any such amendment, modification or replacementmaterial respect.
(bc) Parent shallFrom the date of this Agreement until the earlier of (x) the Effective Time and (y) the termination of this Agreement in accordance with its terms, the Company agrees to use its commercially reasonable efforts to provide such assistance and shall to cause each of its Affiliates Subsidiaries and Representatives toto provide such assistance, use in connection with any equity or debt financing to be undertaken by Parent, Merger Sub or their affiliates for the purpose of funding the Transactions and the related fees and expenses (the "Financing") as is reasonably requested by Parent. Such assistance shall include the following: (i) reasonable cooperation with the marketing by Parent and its reasonable best efforts Financing Sources of the Financing; (ii) delivery to Parent and its Financing Sources of (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements information with respect to the Debt Commitment Letter business, operations, financial condition, projections and prospects of the Company and its Subsidiaries as may be reasonably requested by Parent or its Financing Sources; and (B) customary certificates, evidence of insurance, authorization letters in connection with the “Debt Financing Agreements”marketing materials for the financing, agreements and other documents and materials by the Company and its Subsidiaries and their respective Representatives; (iii) on participation by senior management of the terms and conditions that are not materially less favorable to Parent than those contained Company in the Debt Commitment Letternegotiation of, and the execution and delivery of, the agreements, documents and certificates contemplated by the Financing, including (A) officer, secretary, solvency and perfection certificates, corporate organizational documents, good standing certificates, Lien searches, and resolutions requested by Parent or its Financing Sources; (B) documents reasonably requested by Parent or its Financing Sources relating to the repayment of existing debt; and (C) other customary documentation and other information; (iv) taking such actions as are reasonably requested by Parent or its Financing Sources to satisfy facilitate the satisfaction on a timely basis of all conditions precedent to obtaining the Financing; (v) taking all actions as may be reasonably requested by Parent or its Financing Sources in connection with the repayment of the existing indebtedness of the Company and its Subsidiaries; (vi) using its commercially reasonable efforts to cause its independent auditors to cooperate with the Financing, including by (A) providing assistance with the due diligence activities of the Financing Sources and (B) providing access to work papers of the Company and its Subsidiaries and other supporting documents as may be reasonably requested by Parent or its Financing Sources; (vii) obtain the waiver of)accountants' comfort letters, legal opinions, and other documentation and items relating to the Financing as reasonably requested by Parent (including by assisting Parent's legal counsel in a manner that will not impede the ability connection with obtaining or preparing any of the parties foregoing); (viii) using its commercially reasonable efforts to consummate provide to Parent all documentation and other information required by Regulatory Authorities or requested by the MergerFinancing Sources under applicable "know your customer" and anti-money laundering rules and regulations, all conditions to receipt of including the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence andPATRIOT Act, upon satisfaction of the conditions set forth in the Debt Commitment Lettereach case, to consummate the Debt Financing extent requested in writing at or least ten (10) Business Days prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, Closing Date; and (Evix) cooperation with Parent's Financing Sources' due diligence, to consummate the Debt extent customary or reasonable; provided, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of the Company or its Subsidiaries; provided, further, that nothing in this Agreement shall require any cooperation to the extent it would (1) require the Company, its Subsidiaries or the Company Board or the board of directors of any of the Company's Subsidiaries to waive or amend any terms of this Agreement or agree to pay any commitment, financing or other fees or reimburse any expenses prior to the Closing Date, except to the extent reimbursed by Parent; (2) require any officer of the Company or its Subsidiaries to execute or deliver any document or certificate in connection with the Financing at that is not contingent upon the Closing or that would be effective prior to the Closing (other than customary documents or certificates solely relating to the Company or its Subsidiaries); (3) require the Company or its Subsidiaries to take any action that would conflict with or violate any applicable Laws or any provision of the organizational documents of the Company, or that would result in a violation or breach of, or default under, any Material Contract in effect as of the date of any such request; or (4) result in any officer or director of the Company or its Subsidiaries incurring any personal liability in connection with the Financing; and provided, further, that neither the Company nor any of its Subsidiaries shall be required to incur any indebtedness, grant any Lien to secure indebtedness of Merger Sub or Parent, or pay any commitment fee or other fee or payment to obtain consent or incur any liability with respect to the Financing prior to the Effective Time. In , unless Parent has agreed in writing to reimburse and indemnify the Company for any such liabilities in the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time does not occur. The Company will provide to Parent and its Financing Sources such information as may be necessary so that the Debt Financing. Parent shall keep information supplied by or on behalf of the Company informed on and its Subsidiaries does not and will not contain any untrue statement of a current basis and material fact or omit to state a material fact necessary to make the statements contained therein, in reasonable detail the light of the status circumstances under which such statements are made, not misleading and will correct any such untrue statements or omissions promptly after any of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide its Subsidiaries or their respective Representatives is aware of such untrue statement or omission. The Company consents to the Company copies use of all executed Debt Financing Agreements.
(c) Without limiting of its and its Subsidiaries' logos in connection with the foregoingFinancing. Notwithstanding anything to the contrary contained in this Agreement, Parent agrees to notify no obligation of the Company promptlyor its Subsidiaries under any certificate, document or instrument entered into with respect to this Section 5.16(c) shall be effective until the Closing and in the Company and its Subsidiaries shall not be required to take any event within two (2) Business Daysaction under any certificate, if at any time document or instrument that is not contingent upon the Closing or that would be effective prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonother than, (ii) Parent becomes aware of any breach in each case, customary documents or default (A) by any Financing Source party certificates solely relating to the Debt Commitment Letter Company or its Subsidiaries). Parent shall indemnify, defend and hold harmless the Company and its affiliates, and their respective pre-Closing Representatives, from and against any liability, obligation or loss suffered or incurred by them in connection with the arrangement of the Financing, any information provided in connection therewith (other than arising from information provided by the Company or its Subsidiaries but including any violation of the Confidentiality Agreement) and any misuse of the logos or marks of the Company or its Subsidiaries in connection therewith, except in the event such liabilities, obligations or losses arose out of or result from the willful misconduct of the Company, any of its Subsidiaries or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereintheir respective Representatives. Parent shall promptly provide any information reasonably requested by reimburse the Company relating to for any circumstances referred to out-of-pocket costs and expenses incurred in this Section 6.13(c). Parent shall notconnection with the Company's, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all Subsidiaries' or any portion of the Debt Financingtheir respective Representatives' obligations under this Section 5.16.
(d) Parent acknowledges and agrees that obtaining the Financing shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior not be a condition to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion consummation of the Debt Financing by reducing commitments under Transactions, and affirms its obligations to consummate the Debt Commitment Letter; provided that Transactions (vsubject to the conditions contained in ARTICLE VI) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount irrespective and independently of the Debt Financing committed under the Debt Commitment Letter following availability of any such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by Financing. For purposes of this Agreement, (x) the proceeds term "Financing Source" means each Equity Financer and any future source of such equity or debt offerings financing, if any, that may provide financing to Parent or other incurrences have been received by Parent in cash, (y) Parent promptly notifies Merger Sub for the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectTransactions.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Financing Letters (including, in the case of the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under Financing, alternative or additional debt financing consistent with the Debt Commitment Letter) and any related Fee Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and Engagement Letter and shall not, without the Company’s prior written consent, permit not agree to any amendment, supplement, replacement amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Financing Letters or any Fee Letter or Engagement Letter without the prior written consent of the Company if such amendments, modifications or waivers (or, in the case of the Debt Commitment Letter if such amendmentLetter, supplement, replacement, modification alternative or waiver additional debt financing) would (Ai) reduces reduce the aggregate amount of the cash proceeds Financing (including by changing the amount of fees to be paid or original issue discount) from that contemplated in the Debt Financing Letters, or (Bii) imposes impose new or additional conditions to the initial funding or other terms or otherwise expands expand, amend or modify any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would be reasonably be expected likely to (x) materially delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateClosing, or (y) adversely affect impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Debt Commitment any Financing Letter when required pursuant to this Agreement or the definitive agreements with respect thereto (providedthereto. For purposes of clarification, that the foregoing shall not prohibit Parent may amend from replacing or amending the Debt Commitment Letter and any related Fee Letter or Engagement Letter solely to add or replace additional lenders, lead arrangers, bookrunners, syndication agents or similar entities entities, so long as the addition of such action additional parties would not reasonably be expected expected, individually or in the aggregate, to (x) materially delay or prevent the Closing). , or (y) adversely impact the ability of Parent shall promptly deliver or Merger Sub, as applicable, to enforce its rights against the Company true, complete and correct copies of other parties to any such amendment, modification Financing Letter when required pursuant to this Agreement or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timethereto. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any Any reference in this Agreement to the (A) “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Financing Letters as amended or modified pursuant to clause in compliance with this Section 6.12 and (iiB) below, (ii) any reference in this Agreement to the “Financing Letters” or “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time such documents as amended or modified in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with this Section 6.14(a)(iii)6.12.
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (TPC Group Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, a. Parent shall use its reasonable best efforts to takeobtain, or cause to be takenobtained, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to: (1) maintain in effect the Debt Commitment Letter; (2) negotiate and enter into definitive agreements with respect to seek the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions contained therein or on other terms that are no less favorable to enforce its rights under Parent than those contained in the Financing Agreements; and (3) taking into account the expected timing of the Marketing Period, satisfy on a timely basis all conditions applicable to Parent to obtaining the Debt Financing that are within Parent’s control. In the event that all conditions contained in the Debt Commitment Letter in have been satisfied (or upon funding will be satisfied), Parent shall use its reasonable best efforts to timely cause the event of a breach thereof by Lender to fund the financing provider(s) thereunder. Debt Financing at the Closing.
b. Parent shall not, without the Company’s prior written consentconsent of Company: (1) terminate the Debt Commitment Letter, unless the Debt Commitment Letter is replaced in a manner consistent with the following clause (2); or (2) permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of of, any provision or remedy under, or replace, the Debt Commitment Letter if such amendment, supplementmodification, waiver or replacement: (x) would (1) add any new condition to the Debt Financing Commitment (or modify any existing condition in a manner adverse to Parent) or otherwise that would be reasonably expected to materially and adversely affect (including with respect to timing, modification taking into account the expected timing of the Marketing Period)) the ability of Parent to consummate the transactions contemplated by this Agreement and the other Covered Agreements; or waiver (A2) taking into account the expected timing of the Marketing Period, be reasonably expected to make the timely funding of the Debt Financing or satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur; (y) reduces the aggregate amount of the cash proceeds from the Debt Financing to an amount such that the transactions contemplated hereby or by the other Covered Agreements could not be consummated; or (Bz) imposes new or additional conditions to taking into account the initial funding or otherwise expands any expected timing of the conditions to the receipt of the Debt FinancingMarketing Period, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) prevent, impede or materially delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of Merger and the conditions to other transactions contemplated by this Agreement and the Debt Financing) on other Covered Agreements; provided that, notwithstanding the Closing Dateforegoing, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, it is hereby understood and agreed that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Commitment Letter as of the date hereof and provide such action would lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to existing conditions to the consummation of the Debt Financing to the extent that the commitments in the aggregate of the lenders to provide the Debt Financing are not reasonably be expected to delay or prevent the Closing)reduced as a result of any such amendment. Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification modification, waiver or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability replacement of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the any Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (MTS Systems Corp)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letters (or on terms no less favorable to Parent or Merger Sub (including with respect to the terms thereof (including any “market flex” provisionsconditionality thereof)) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any material provision underor remedy under the Financing Letters, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional amends the conditions precedent to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (x) delay or prevent the Closing Date or make the funding in full of the Debt Financing (or satisfaction of the conditions less likely to the Debt Financing) on the Closing Dateoccur; provided, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (providedhowever, that Parent and Merger Sub may replace and amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long who had not executed the Debt Commitment Letter as such action would not reasonably be expected to delay or prevent of the Closing)date hereof. Each of Parent and Merger Sub shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) Financing Letters and to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter (or on terms no less favorable to Parent or Merger Sub than the terms and conditions in the Debt Commitment Letter), (Cii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions applicable to receipt of the full amount of the Debt Financing at the Closing set forth therein it in such definitive agreements that are within its control or subject to its influence andcontrol, (iii) upon satisfaction of the conditions set forth in the Debt Commitment Lettersuch conditions, to consummate the Debt Financing at or prior to the Closing, (Div) to comply with its obligations under the Debt Commitment Letter, Financing Letters and (Ev) to consummate the Debt Financing at or prior to the Effective Time. In the event that enforce all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their its rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and the definitive financing agreements and to fund on or before the Effective Time the Debt Financingrelated thereto. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by Financing and provide to the Company, provide upon its request, copies of the definitive documents related to the Company copies of Financing. In the event that all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and conditions in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reasonhave been satisfied or, (ii) upon funding will be satisfied, Parent becomes aware of any breach or default (A) by any Financing Source party and Merger Sub shall use their reasonable best efforts to cause the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of Persons providing the Debt Financing or to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby (iiiincluding by taking enforcement action to cause the Persons providing the Debt Financing to fund such Debt Financing).
(b) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or If any portion of the Debt Financing contemplated by the Debt Commitment Letter becomes unavailable on the terms set forth therein. Parent shall promptly provide any information reasonably requested and conditions contemplated by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (wi) Parent and Merger Sub shall immediately notify the aggregate Company and (ii) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated hereby with terms and conditions no less favorable from the standpoint of Parent and Merger Sub than the Debt Financing committed under terms and conditions set forth in the Debt Commitment Letter as promptly as practicable following the occurrence of such reductionevent. Parent shall give the Company prompt notice if any condition to the Financing Letters is not likely to be satisfied, together with other cash in each case, of which Parent or Merger Sub becomes aware or any termination of the Financing Letters. Parent and cash equivalents available to ParentMerger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is sufficient not a condition to pay all amounts required Closing. For purposes of this Section 5.6, references to "Financing" shall include the financing contemplated by the Financing Letters as permitted to be paid amended, modified or replaced by this Section 5.6 and references to "Debt Commitment Letter" shall include such documents as permitted to be amended, modified or replaced by this Section 5.6.
(c) Prior to the Closing Date, the Company and its Subsidiaries shall, and the Company shall use its reasonable best efforts to cause its and their Representatives to, provide to Parent and Merger Sub all cooperation reasonably requested by Parent and that is customary in connection with the arrangement of the Financing and the transactions contemplated by this Agreementhereby; provided, (x) however, that no such requested cooperation may unreasonably interfere with the proceeds ongoing operations of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company and its Subsidiaries. Such cooperation shall include (i) furnishing Parent, Merger Sub and their Financing sources as promptly as practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested in writing by Parent, including all financial statements and financial and other data of such substitution the type required by Regulation S-X (other than Item 3-10 of Regulation S-X) and reduction Regulation S-K under the Securities Act for registered offerings of debt securities, and (z) trueof the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act, correct to consummate the Financings at the time the Financings are to be consummated, including all information and complete copies data necessary to satisfy the conditions set forth in paragraphs 4 and 5 of each material amendment or modification to Exhibit C of the Debt Commitment Letter relating thereto will (information required to be promptly provided delivered pursuant to the Company. If commitments under the Debt Commitment Letter have been reduced this clause (i) being referred to zero as "Required Financial Information), (ii) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions, drafting sessions and sessions with prospective lenders, investors and rating agencies in connection with the preceding sentenceFinancing, (iii) assisting with the obligations preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents required in connection with the Financing, (iv) using reasonable best efforts to obtain accountant's comfort letters and legal opinions as reasonably requested by Parent, (v) taking all corporate actions, subject to the occurrence of the Effective Time, required to permit the consummation of the Financing and to permit the proceeds thereof to be made available to the Surviving Corporation immediately after the Effective Time, (vi) providing unaudited consolidated monthly financial statements of the Company (excluding footnotes) consisting of a balance sheet, income statement and statement of cash flows to the extent the Company customarily prepares such financial statements and (vii) executing and delivering any pledge and security documents, other definitive financing documents or other certificates or documents as may be requested by Parent (including a certificate of the chief financial officer of the Company with respect to solvency matters and consents of accountants for use of their reports in any materials relating to the Debt Financing) and otherwise reasonably facilitating the pledging of collateral; provided, however, that no obligation of the Company or any of its Subsidiaries under any certificate, document or instrument shall be effective until the Effective Time, and none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other liability in connection with the Financing prior to the Effective Time.
(d) The Company hereby consents to the use of its and its Subsidiaries' logos in connection with the Financing; provided, however, that such logos are used solely in a manner that is not intended to or reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company or any of its Subsidiaries. Parent shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys' fees) incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries pursuant to contemplated by this Section 6.14 5.6 and shall no longer be in effect. Furtherindemnify and hold harmless the Company, Parent shall have the right to substitute commitments in respect its Subsidiaries and their respective Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid them in connection with the transactions contemplated by this Agreement and all conditions precedent to funding arrangement of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter than to the extent then such losses arise from the willful misconduct of the Company, any of its Subsidiaries or any of its Representatives) and any information used in effectconnection therewith, and (iii) except with respect to any reference in this Agreement to “fee letter” shall be deemed to include information provided by the Company or any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectof its Subsidiaries.
(e) On In no event shall Parent, Merger Sub or the Closing Date, Parent shall provide all funds required Equity Provider (i) retain any financial advisor on an exclusive basis other than advisors to effect which the repayment board of all indebtedness under directors of the Company Credit Agreement consents (which consent shall not be unreasonably withheld, delayed or conditioned) or (ii) enter into any exclusive, lock-up or similar agreement, arrangement or understanding, with any bank or investment bank or other potential provider of debt or equity financing that could reasonably be expected to prevent such provider from providing or seeking to provide such financing to any third party in full connection with a transaction relating to the Company or its Subsidiaries, in accordance connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to Merger or the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the other transactions contemplated by this Agreementhereby.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its, and shall cause its controlled Affiliates to use their, reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant subject only to the terms thereof conditions (including any the market “market flex” provisions) set forth in the Commitment Papers contemporaneously with the Closing, including by using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Papers, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter Financing (the “Debt Financing Definitive Agreements”) on consistent with the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, Papers and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to Closing Date all conditions in the Commitment Papers and the Definitive Agreements and comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timethereunder. In the event that all conditions precedent expressly set forth contained in the Debt Commitment Letter Papers or the Definitive Agreements (other than the consummation of the Merger and other than those that by their nature are to be satisfied at the Closing) have been or, upon funding of the Debt Financing will be, satisfiedsatisfied or waived, Parent and Sub shall use their its reasonable best efforts to in all material respects enforce their its rights underunder the Commitment Papers, and including using reasonable best efforts to cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing Lenders to comply with their respective obligations under the Debt Commitment Letter and definitive financing agreements and thereunder, including to fund on or before the Effective Time the Debt Financing. Parent shall not, without the prior written consent of the Company, permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Papers if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of the Financing to an amount that, when combined with cash of the Parent, would not be sufficient to consummate the Refinancing, (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that would reasonably be expected to prevent or materially impede or delay the funding of the Financing, (C) adversely impact the ability of Parent to enforce its rights against the other parties to the Commitment Papers or (D) would otherwise reasonably be expected to prevent or materially impede or delay the funding of the Financing. Parent shall promptly deliver to the Company true and complete copies of any amendment, modification, supplement, consent or waiver to or under any Commitment Papers promptly upon execution thereof.
(b) Parent shall keep the Company informed on a current reasonably prompt basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) . Without limiting the generality of the foregoing, Parent agrees to notify shall give the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date prompt written notice of (i) any actual or threatened breach, default, termination, cancellation or repudiation by any party to the Debt Commitment Letter is terminated for Papers and the receipt of any reasonwritten notice or other written communication from any Financing Source with respect to any breach, default, termination, cancellation or repudiation by any party to the Commitment Papers, or (ii) Parent becomes aware the occurrence of any breach an event or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would development that could reasonably be expected to adversely affect the availability ability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses Parent to provide, obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth thereinClosing Date to the extent necessary to fund the Refinancing. As soon as reasonably practicable after the Company delivers to Parent a written request, Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances circumstance referred to in this Section 6.13(c)the immediately preceding sentence. Parent shall not, nor shall it permit any of its Affiliates to, without If the prior written consent of Financing becomes unavailable on the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof terms and prior to the Closing from consummated offerings or other incurrences of debt conditions (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (applicable market “Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (iprovisions) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Papers (other than solely as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment result of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, ParentCompany’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.material
Appears in 1 contract
Samples: Merger Agreement (Science Applications International Corp)
Financing. (a) Subject The Investor has delivered to the terms Company a true and conditions complete copy of the executed Equity Commitment Letter dated as of the date hereof, which has not been amended or modified in any manner since the Investor provided, on or prior to the date of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt a fully executed copy of such Equity Commitment Letter pursuant as in effect as of the date hereof. As of the date hereof, the Equity Commitment Letter has not been withdrawn, rescinded or repudiated in any respect. As of the date hereof, the Equity Commitment Letter is in full force and effect, is not subject to any contingencies or conditions that are not set forth therein, and represents a valid, binding and enforceable obligation of the Investor and, to the terms thereof Knowledge of the Investor, the other parties thereto, enforceable in accordance with its terms, subject in all respects to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors’ rights generally and general equitable principles (including whether considered in a proceeding in equity or at Law) or by the discretion of any “market flex” provisionsGovernmental Authority before which any Proceeding seeking enforcement may be brought (regardless of whether enforcement is sought in a Proceeding at Law or in equity). There are no other agreements, side letters or arrangements (other than the Equity Commitment Letter) including using to which the Investor is a party or contemplated by the Investor or any of its reasonable best efforts Affiliates relating to seek to enforce its rights under the Debt Equity Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent adversely affect the funding in full availability of the Debt Financing (Subscription at the time of the Closing. As of the date hereof, no event has occurred insofar as it relates to the Investor or its Affiliates that, with or without notice, lapse of time or both, assuming satisfaction of the conditions to the Debt Financing) on the Closing Dateprecedent set forth in Article V, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not is reasonably be expected to delay constitute a default or prevent breach under any term or condition of the Closing)Equity Commitment Letter. Parent shall promptly deliver to As of the Company truedate hereof, complete and correct copies assuming the satisfaction of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided conditions contained in this Section 6.13)Agreement, (B) the Investor has no reasonable basis to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions believe that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) it will be unable to satisfy on a timely basis (any term or obtain condition to be satisfied pursuant to the waiver of)Equity Commitment Letter. Except as set forth in the Equity Commitment Letter, and in a manner that will not impede the ability as of the parties date hereof, the Investor has not incurred any obligation, commitment, restriction or Liability of any kind that might reasonably be expected to consummate impair or adversely affect its ability to have the Merger, all conditions to receipt aggregate Purchase Price immediately available as of the full amount Closing Date. As of the Debt Financing at date hereof, assuming the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth contained in this Agreement, no Person has any right to impose, and the Debt Commitment LetterInvestor and, to consummate the Debt Financing at or prior Knowledge of the Investor, the other parties to the ClosingEquity Commitment Letter do not have any obligation to accept, (Dx) any condition precedent to comply with its obligations under such funding other than the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Equity Commitment Letter have been or, upon funding of nor (y) any reduction to the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations aggregate amount available under the Debt Equity Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) nor any term or condition not expressly set forth in the Debt Equity Commitment Letter is terminated for any reason, (ii) Parent becomes aware which would have the effect of any breach or default (A) by any Financing Source party to reducing the Debt aggregate amount available under the Equity Commitment Letter or any Debt Financing Agreement or (B) any on the Closing Date), other party to the Debt Commitment Letter or any Debt Financing Agreement if, than in the case of this clause (By), such breach or default would reasonably be expected to affect any reduction in the availability of commitments taking into account the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after from the date hereof and prior to the Closing from consummated offerings or other incurrences issuance of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid securities in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttherewith.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Nesco Holdings, Inc.)
Financing. (a) Subject Parent shall not agree to any amendment or modification to, or grant any waiver of, any provision under the Commitment Letter without the prior written consent of the Company if such amendment, modification or waiver would (i) impose additional conditions to the receipt of the Financing on the Closing Date, or otherwise amend or modify any such conditions in a manner that is adverse in any material respect to Parent or the Company, (ii) individually or in the aggregate with all other amendments, modifications or waivers to the Commitment Letter, reasonably be expected to prevent or make less likely to occur the funding of the commitments thereunder on the Closing Date or (iii) reduce the aggregate amount of the available commitments thereunder other than to the extent the representations set forth in Section 4.07(c) would continue to be true after giving effect thereto (the foregoing clauses (i) through (iii), the “Prohibited Changes”); provided that, without the consent of the Company, Parent may amend (it being understood that no such amendment shall constitute a Prohibited Change) the Commitment Letter to add additional lenders, arrangers, bookrunners and agents or to implement or exercise any of the “market flex” provisions contained in any Fee Letter. Notwithstanding the foregoing or any provision of this Agreement to the contrary, Parent shall be entitled to replace the Commitment Letter by entering into definitive documentation with respect to the Financing on or prior to the Closing so long as such definitive documentation is on terms and conditions of this Agreement, consistent with the Commitment Letter and would not result in Prohibited Changes.
(b) Parent shall will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain consummate the Debt Financing on the terms and subject to the conditions described set forth in the Debt Commitment Letter pursuant Letter, including, prior to the terms thereof consummation of the Financing in an aggregate amount that is sufficient (including taken together with any “market flex” provisionscash available to Parent) including for the representation set forth in Section 4.07(c) to continue to be true, using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided including any definitive documentation entered into in this Section 6.13connection therewith), (Bii) satisfy all conditions in the Commitment Letter (including any definitive documentation entered into in connection therewith) applicable to negotiate Parent and enter Merger Sub to obtaining the Financing thereunder as promptly as practicable (taking into account the expected timing of the Effective Time) (other than any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information to Parent or otherwise comply with its obligations or the accuracy of any of its representations under this Agreement), (iii) as promptly as practicable (taking into account the expected timing of the Effective Time), negotiate, execute, and deliver definitive agreements documentation with respect to the Debt Financing contemplated by the Commitment Letter (the “Debt Financing Agreements”) on the terms and subject to the conditions that are contemplated by the Commitment Letter (or on terms not materially less favorable to Parent and Merger Sub than those contained the terms and conditions (including market flex provisions) set forth in the Debt Commitment Letter and related Fee Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or (v) subject to its influence and, upon the satisfaction of the conditions set forth in the Debt Commitment LetterLetter and Sections 6.01 and 6.02, cause the Financing Sources party thereto to consummate fund the Debt Financing at thereunder on or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective TimeClosing Date. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or If any portion of the Debt Financing contemplated by otherwise becomes unavailable, and such portion is reasonably required to fund the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of aggregate Per Share Merger Consideration and all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received fees and expenses payable by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Merger Sub in connection with the transactions contemplated by this Agreement, (x) Parent and Merger Sub will use their reasonable best efforts to arrange to obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to pay the proceeds of aggregate Per Share Merger Consideration and such debt offerings or other incurrences have been received fees and expenses payable by Parent and Merger Sub. Notwithstanding anything in cashthis Section 5.15 to the contrary, (ysolely to the extent the representations set forth in Section 4.07(c) Parent promptly notifies the Company of such substitution and reduction and (z) shall continue to be true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto Parent will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect the proceeds of consummated equity securities issuances or equity linked, convertible, exchangeable or other financings debt securities issuances or other incurrences of debt for all or any portion of the Debt amount contemplated to be provided by the Bridge Financing from contemplated by the same and/or alternative financing sources so long as Bridge Commitment Letter and may reduce the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid commitments thereunder. Any reference in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) “Financing” will include the conditions precedent set forth in the Debt Commitment LetterBridge Financing and any such alternative, to supplement replacement or replace the Debt Financing (“Alternative Debt Financing”). Truesubstitute financing, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt FinancingCommitment Letter” shall will include the debt financing contemplated by the Debt Bridge Commitment Letter as modified pursuant and the commitment letter, if any, and the corresponding fee letter with respect to clause any such alternative financing or such replacement financing.
(c) Upon the Company’s reasonable request, Parent will keep the Company reasonably informed on a reasonably current basis of the status of Parent’s and Merger Sub's efforts to arrange the Financing and to satisfy the conditions thereof, including, upon the Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to status of definitive documentation for the Financing and any funding thereof. Parent shall give the Company prompt written notice (i) of any material breach or default, repudiation, or termination of any provisions of the Commitment Letter or definitive documentation relating to the Financing (other than, in the case of the commitments with respect to the Bridge Financing or the Bridge Financing, in accordance with the terms thereof), in each case, by any party thereto, of which Parent becomes aware or (ii) belowif for any reason Parent determines in good faith that it will not be able to obtain all or any portion of the Bridge Financing under the Bridge Commitment Letter on the Closing Date (other than as a result of a reduction in accordance with the terms thereof).
(d) In no event shall the receipt or availability of any funds or financing (including the Financing) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder, it being understood that nothing in this Section 5.15(d) is intended to limit (i) the provision of the Required Information pursuant to Section 2.02 or (ii) any reference condition contained in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSection 6.01 or 6.02.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject Neither Parent nor Merger Sub shall agree or permit (and Parent and Merger Sub shall cause their Affiliates to not agree or permit) to any amendment, replacement, supplement or other modification of, or waive any of its rights or any rights in favor of the Company under, any Financing Commitment or any definitive agreements related to any Financing Commitment (including the Debt Fee Letter), in each case, without the prior written consent of the Company, if such amendment, replacement, supplement or other modification or waiver (x) reduces the aggregate amount of the Financing below the amount required to consummate the transactions contemplated hereby on the Closing Date or (y) amends, supplements or otherwise modifies the conditions precedent to the Financing Commitments or adds or imposes new terms or conditions in a manner that would reasonably be expected to (i) materially delay, impede or impair the Closing or prevent the Closing or (ii) adversely impact the ability of Parent, Merger Sub or any of their Affiliates to enforce their rights under the Financing Commitments or the ability of Parent, Merger Sub, Borrower or their Affiliates to perform their obligations hereunder on a timely basis; it being understood and conditions agreed that Parent, Merger Sub or any of their Affiliates may, without the consent of the Company, amend or otherwise modify the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter on the date of this AgreementAgreement so long as such amendment or modification does not have the effects described in clauses (x) or (y) above. Parent and Merger Sub shall promptly deliver to the Company copies of any such amendment, restatement, amendment and restatement, replacement, supplement, modification, waiver or consent. Each of Parent and Merger Sub shall, and shall cause any of their Affiliates, as applicable, to use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper necessary to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to Financing Commitments (as such terms may be modified or adjusted in accordance with the terms thereof (including any of, and within the limits of, the “market flex” provisionsprovisions contained in the Debt Fee Letter, as applicable) including (i) using its reasonable best efforts to seek (u) enforce its rights under the Financing Commitments; provided, however that nothing contained in this Section 5.6 shall require either Parent or Merger Sub to bring any enforcement action or proceeding against any Debt Financing Source to enforce its respective rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the procure Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties pursuant to the Debt Commitment Letter or and Debt Fee Letter, (v) maintain in full force and effect the definitive agreements Financing Commitments in accordance with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver terms and subject to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)conditions thereof, (Bw) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Lettertherein, (Cx) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions applicable to receipt of the full amount of the Debt Financing at the Closing set forth therein Borrower in such definitive agreements that are within its control and (y) cause Borrower to contribute or subject to its influence and, upon satisfaction otherwise transfer the proceeds of the conditions set forth Debt Financing to Parent to permit Parent and Merger Sub to consummate the transactions contemplated by this Agreement; and (ii) at the request of the Company, fully enforcing the Equity Financing Sources’ obligations (and the rights of Parent and the Company) under the Equity Commitment Letter, including by filing one or more lawsuits against the Equity Financing Sources to fully enforce the Equity Financing Sources’ obligations (and the rights of Parent and the Company) thereunder. Upon any amendment, replacement, supplement or modification of the Equity Commitment Letter or Debt Commitment Letter in accordance with this Section 5.6(a), the terms “Equity Commitment Letter” and “Debt Commitment Letter” shall mean the Equity Commitment Letter and Debt Commitment Letter, to consummate the Debt Financing at as applicable, as so amended, replaced, supplemented or prior to the Closing, (D) to comply modified in accordance with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Timethis Section 5.6(a). In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Merger Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any material developments concerning the Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default that would reasonably be expected to adversely affect (x) the ability of Parent or Borrower to satisfy any of the conditions to the Debt Financing or the Equity Financing or (y) the availability of the Debt Financing or the Equity Financing (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion other than by virtue of the Debt Financing contemplated by imposition of original issue discount, which may be funded at the election of Borrower as provided in the Debt Commitment Fee Letter on and/or by an increase in the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reductionEquity Financing); provided, together with other cash and cash equivalents available to neither Parent, is sufficient to pay all amounts the Borrower nor Merger Sub shall be required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter provide information to the extent then in effectthat the provision thereof would violate any attorney-client privilege, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Datelaw, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s rule or regulation or any confidentiality obligation binding on Parent or Merger Sub and/or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementtheir respective affiliates.
Appears in 1 contract
Financing. (a) Subject Parent and Acquisition Sub agree to use commercially reasonable efforts (i) to complete the transactions contemplated by the Commitment Letters and (ii) to complete the transactions contemplated by the Equity Commitment Letters, so as to obtain financing in an amount sufficient to pay the Required Cash Amount.
(b) Without limiting the generality of the foregoing, in the event that at any time funds are not or have not been made available pursuant to the Commitment Letters so as to enable Parent to proceed with the Closing in a timely manner, Parent shall (i) use its commercially reasonable efforts to obtain alternative funding in an amount at least equal to the Required Cash Amount on terms and conditions of this Agreementsubstantially comparable to those provided in the Commitment Letters and the Equity Commitment Letters, or otherwise on terms reasonably acceptable to Parent and (ii) shall continue to use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties applicable Laws to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request transactions contemplated by the Company, provide to the Company copies of all executed Debt Financing Agreementsthis Agreement.
(c) Without limiting Following the foregoingdate hereof, Parent agrees to notify will promptly advise the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date of (i) any amendment, modification, termination or cancellation of any of the Debt Commitment Letter is terminated for any reasonLetters or Equity Commitment Letters, and (ii) Parent becomes aware of any breach change, effect, event, situation or default (A) by any Financing Source party to the Debt Commitment Letter condition or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case information of this clause (B), such breach or default would which Parent is aware as a result of which it could reasonably be expected to affect that the availability of the Debt Transaction Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter be obtained on the terms set forth thereinin the Commitment Letters or the Equity Commitment Letters. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall notNone of Parent, nor shall it permit Acquisition Sub or any of its their respective Affiliates towill (A) attempt, directly or indirectly, to induce or encourage the Lenders or other entities not to fund any of the financing provided for in the Commitment Letters or Equity Commitment Letters or (B) amend, terminate or waive any provisions of the Commitment Letters or Equity Commitment Letters without the prior written consent of the CompanyCompany (which shall not be unreasonably withheld or delayed), take in any action or enter into any transaction manner that would could reasonably be expected to materially impairadversely affect Parent’s ability to obtain the Transaction Financing. Notwithstanding the foregoing, delay or prevent consummation Parent, Acquisition Sub and their respective Affiliates and agents are permitted to keep the Lenders and providers of equity financing apprised of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided developments related to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Worldwide Restaurant Concepts Inc)
Financing. (a) Subject Logo and Xxxxxxxx will use reasonable efforts to take (or cause to be taken) all actions, and do (or cause to be done) all things, necessary, proper or advisable to obtain (i) the Debt Commitment Letter promptly after the date hereof in an aggregate principal amount of at least $325,000,000 on terms substantially consistent with the Highly Confident Letter (or otherwise on terms reasonably acceptable to Logo and Xxxxxxxx) and (ii) the Debt Financing on a timely basis (and in any event prior to the Outside Date) on terms substantially consistent with the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter. Each Party will keep the other informed on a current basis and in reasonable detail of the status of the Debt Financing and provide such further updates upon the request of the other Party.
(b) From and after the date of execution thereof, neither Logo nor Xxxxxxxx will permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter, without the prior written consent of Logo or Xxxxxxxx, as applicable, if such amendment, modification, waiver or replacement (x) reduces the aggregate cash amount of the Debt Financing contemplated by the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter to be provided on the Closing Date, when taken together with all other available sources of funding, below the amount necessary to consummate the Transactions or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of this Agreementthe conditions to the receipt of the Debt Financing contemplated by the Debt Commitment Letter or, Parent shall in the absence thereof, the Highly Confident Letter, in a manner that would reasonably be expected to (A) delay or prevent the Closing or (B) delay, prevent or otherwise make less likely to occur the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing).
(c) Logo and Xxxxxxxx will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expandsincluding, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected without limitation, to (xi) delay or prevent from and after the funding date of execution thereof, maintain in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete force and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter until the earlier of the consummation of the Transactions or the termination of this Agreement in accordance with its terms, (provided that ii) satisfy on a timely basis all conditions and covenants applicable to Logo or Xxxxxxxx, as applicable, to obtain the Debt Financing at the Closing as set forth in the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (Biii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable to Parent than those contained in (including flex provisions) contemplated by the Debt Commitment LetterLetter or, in the absence thereof, the Highly Confident Letter (C) and provide copies thereof to satisfy on a timely basis (the other, as applicable, to the extent that any Transferred Entity or obtain any officer, manager or employee thereof is expected to execute the waiver of), and same in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of connection with the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to Financing) and (iv) consummate the Debt Financing in accordance with the terms and conditions of the Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter, at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(cd) Without limiting the foregoing, Parent agrees to notify the Company Logo and Xxxxxxxx will promptly, and in any event within two (2) Business Days, if at any time prior to notify the Closing Date other in writing (i) the Debt Commitment Letter is terminated for any reasonif Logo or Xxxxxxxx, (ii) Parent becomes aware as applicable, has knowledge of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would reasonably be expected to affect give rise to any breach or default) by any party to any Debt Commitment Letter, the availability Highly Confident Letter or any definitive document related to the Debt Financing, (ii) if Logo or Xxxxxxxx, as applicable, has actual knowledge of any event that would reasonably be expected to constitute or result in a failure to satisfy a condition precedent or other contingency set forth in any Debt Commitment Letter or, in the absence thereof, the Highly Confident Letter, (iii) of the receipt by Logo or Xxxxxxxx, as applicable, of any written notice from any Person with respect to any actual or potential breach, default, termination or repudiation by any party to a Debt Commitment Letter, the Highly Confident Letter or any definitive document related to the Debt Financing and (iv) if for any reason Logo or (iii) a counterparty indicates Xxxxxxxx, as applicable, reasonably believes in writing or orally good faith that it the Company will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on substantially the terms contemplated by the Debt Commitment Letter on or, in the terms set forth thereinabsence thereof, the Highly Confident Letter, or the definitive documents related to the Debt Financing. Parent shall promptly In any circumstance referred to in the preceding sentence, Logo or Xxxxxxxx, as applicable, will provide any information reasonably requested by the Company other relating to such circumstance as soon as reasonably practicable, but in any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingevent within two Business Days after such request.
(de) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or If any portion of the Debt Financing by reducing commitments under required to consummate the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result Transactions becomes unavailable on the terms and conditions contemplated in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reductionor, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceabsence thereof, the obligations Highly Confident Letter, Logo or Xxxxxxxx, as applicable, will promptly notify the other of the Company same in writing (as provided above) and its Subsidiaries pursuant Logo and Xxxxxxxx will cooperate and use their respective reasonable best efforts to Section 6.14 shall no longer be arrange to obtain alternative debt financing on terms in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more not materially less favorable to the Company than(as jointly determined by Logo and Xxxxxxxx in good faith) than the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter (the “Alternative Financing”) from alternative debt sources in an amount sufficient to consummate the Transactions promptly following the occurrence of such event. Logo or Xxxxxxxx, as modified applicable, will promptly deliver to the other true and complete copies of all agreements pursuant to clause (ii) belowwhich any such alternative source will have committed to provide any portion of the Debt Financing pursuant to this Section 5.5(e). In the event any Alternative Financing is obtained in accordance with this Section 5.5(e), (ii) any reference references in this Agreement to the “Debt Commitment Letter” Financing shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter refer to the extent then in effectsuch Alternative Financing, and (iii) any reference references in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter will include such documents as permitted to the extent then in effect.
(e) On the Closing Datebe amended, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s modified or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions replaced as contemplated by this AgreementSection 5.5(e). If the Closing has not occurred on or prior to the date that is 6 months after the Effective Date, the Parties agree to discuss in good faith the status of the Debt Financing and timeline for Closing, provided that the foregoing shall not be deemed to obviate the Parties’ obligations to pursue Alternative Financing pursuant to this Section 5.5(e).
Appears in 1 contract
Samples: Contribution Agreement (Matthews International Corp)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper necessary to arrange and obtain the proceeds of the New Debt Financing as promptly as reasonably practicable on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any the “market flex” provisions) provisions contained in any fee letters), including by using its reasonable best efforts to: (i) maintain in effect the Debt Commitment Letter, subject to seek the modifications expressly permitted hereunder, (ii) negotiate as promptly as possible, and enter into, definitive agreements relating to the New Debt Financing at or prior to the Closing (including, as necessary, the “flex” provisions contained in the any fee letters), (iii) satisfy or obtain a waiver thereof and to cause their Representatives to satisfy, on a timely basis all conditions applicable to Parent, Merger Sub or their respective Representatives in the Debt Commitment Letter within their respective control, (iv) assuming that all conditions contained in the Debt Commitment Letter have been satisfied or waived, consummate the New Debt Financing at or prior to the Closing, and (v) enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderLetter. Parent shall notkeep the Company reasonably informed of the status of its efforts to arrange the New Debt Financing.
(b) Parent and Merger Sub shall not agree to, or permit, without the Company’s prior written consentconsent of the Company, permit any assignment, amendment, supplement, replacement supplement or modification to be made to, replacement, restatement or substitution of, or any waiver by Parent or Merger Sub of any material provision or remedy under, the Debt Commitment Letter (including with respect to any alternative financing intended to replace or be substituted for, in whole or in part, any portion of the New Debt Financing) if such assignment, amendment, supplement, modification, replacement, modification restatement, substitution or waiver (A) reduces the aggregate amount of the net cash proceeds from of the New Debt Financing or to be funded on the Closing Date, (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, precedent or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner conditions precedent to the receipt of the Financing, that would reasonably be expected to (x) prevent, materially impede or delay or prevent the funding in full consummation of the Debt Financing (or satisfaction of the conditions to the New Debt Financing) on the Closing Date, or (yC) adversely affect impacts the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (to the New Debt Financing; provided, that Parent may amend amend, modify, assign, supplement, substitute, replace or restate the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or and similar entities so long as entities, and grant customary approval rights to such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver additional lenders, lead arrangers and bookrunners, subject to the Company true, complete and correct copies of any such amendment, modification or replacementforegoing clauses (A) through (C).
(bc) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain In the event that any portion of the New Debt Financing becomes unavailable in effect the manner or from the sources contemplated in the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)for any reason whatsoever, (Bi) Parent shall promptly so notify the Company and (ii) Parent and Merger Sub shall use reasonable best efforts to arrange and obtain, and negotiate and enter into commitment letters and/or definitive agreements with respect to, alternative financing in an amount sufficient when added to the Debt Commitment Letter (portion of the “New Debt Financing Agreements”(if any) and cash on the terms hand that is available and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing be funded at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and to pay all related fees and expenses upon terms and conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more not less favorable to the Company than(with respect to conditionality) the conditions precedent set forth and no less favorable to Parent in any material respect than those in the Debt Commitment Letter, to supplement or replace Letter (including the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redactedin any fee letter), will be as promptly provided to as practicable following the Company. In the occurrence of such event (and in any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On event no later than the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to The Parent and the terms and conditions of this Agreement, Parent Merger Subsidiary shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange (i) maintain in effect the Commitment Letters and obtain to satisfy the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant (to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights extent such conditions are under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount reasonable control of the cash proceeds from Parent) to obtaining the Debt Financing or set forth therein, (Bii) imposes new or additional conditions enter into definitive financing agreements (the "Financing Agreements") with respect to the initial funding or otherwise expands any of Financing so that the conditions to Financing Agreements are in effect as promptly as practicable (but no later than the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xthird business day) delay or prevent the funding in full of the Debt Financing (or following satisfaction of the conditions to this Agreement and (iii) consummate the Debt Financing) on Financing as soon as practicable following satisfaction of the Closing Date, or (y) adversely affect the ability of Parent conditions to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing)this Agreement. The Parent shall promptly deliver to keep the Company truereasonably informed of the status of the financing process and shall advise the Company if, complete at any time after the date hereof, any of the representations and warranties set forth in Section 4.3 are no longer true and correct copies of in any such amendment, modification or replacementmaterial respect.
(b) If the Commitment Letters or the Financing Agreements expire or are terminated, amended, modified or supplemented for any reason, the Parent shall (i) promptly notify the Company of such expiration, termination, amendment, modification or supplement and the reasons therefor and (ii) in the case of the termination or expiration of either of the Commitment Letters, use commercially reasonable efforts to obtain alternative financing to consummate the transactions contemplated by this Agreement; it being understood, however, that such commercially reasonable efforts would not require the Parent to obtain financing that is on terms less favorable, in substance, to the Parent and the Merger Subsidiary thereunder than those set forth in the Commitment Letters or the Financing Agreements, as the case may be.
(c) The Company shall, and shall cause its Affiliates Subsidiaries, to reasonably cooperate with the Parent in connection with the fulfillment of the obligations of the Parent under Sections 5.6(a) and Representatives to5.6(b) of the Agreement and the fulfillment of the condition set forth in Section 6.3(d) of the Agreement, including causing the Company and any of its Subsidiaries and each of their respective directors, officers, employees, agents, attorneys, accountants, investment bankers and other representatives (collectively, the "Company Representatives") to (i) provide, as promptly as reasonably practicable after the execution of this Agreement, the Parent with all audited financial statements and interim financial statements of the Company that would be required to be included in a registration statement of the Parent filed under the Securities Act of 1933, as amended, pursuant to Rule 3-05 of Regulation S-X, (ii) provide, as promptly as reasonably practicable after the execution of this Agreement, all financial information required by the Parent to produce pro forma financial statements for the Parent in accordance with Article 11 of Regulation S-X, (iii) assist with the preparation of such offering memoranda and documentation as is required under the Commitment Letters, (iv) meet with potential lenders and financing sources, (v) remove all Liens (other than Liens arising after the date of this Agreement in the ordinary course of business in favor of mechanics, contractors or repairmen for amounts which are not material to the business of the Company and its Subsidiaries, which are being contested in good faith by appropriate proceedings diligently prosecuted, which proceedings have the effect of preventing the forfeiture or sale of the property subject thereto, and in each case for which adequate reserves in accordance with GAAP are being maintained) that are not Permitted Liens from the Leased Real Property and the Owned Real Property, (vi) obtain consents, estoppel certificates, memorandums of leases, and subordination, non-disturbance and attornments agreements from the lessors of the Leased Real Property, (vii) permit Phase II environmental investigations on up to 12 of the Owned Real Properties and Leased Real Properties and (viii) timely notify all third parties holding rights of first refusal, rights of first offers and purchase options against the Owned Real Property of the Financing and seek to obtain waivers of those rights.
(d) The Company shall, and shall cause its Subsidiaries, to provide the Parent with financial statements and related information sufficient to permit the Parent to fulfill its obligations to provide financial disclosure relating to the Company, on a timely basis in any report under the Exchange Act.
(e) Upon the request of the Parent, the Company shall (i) use its commercially reasonable efforts to cause its independent auditors to deliver to the SEC any auditor's consent that is required to be included in any filing with the SEC that includes or incorporates by reference the financial statements and related information of the Company and (ii) to the extent the Parent or any of its Subsidiaries conducts or intends to conduct an offering of securities (and if the registration statement, prospectus or offering memorandum for such offering includes or incorporates by reference the financial statements relating to the Company), use its commercially reasonable best efforts (A) to maintain cause its independent auditors to deliver a letter containing statements and information of the type ordinarily included in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements accountant's "cold comfort letters" with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms financial statements and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide financial information relating to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and contained or incorporated by reference in any event within two (2) Business Days, if at such document relating to any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifsuch offering, in the case of this clause each of (B)i) and (ii) above, such breach or default would reasonably be expected to affect within the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information time period reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit or any of its Affiliates toSubsidiaries. In addition, without the prior written consent of the Company, take in connection with any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts SEC filing required to be paid in connection with made by the transactions contemplated by this Agreement, Parent or any of its Subsidiaries (x) the proceeds or any SEC review of such debt offerings or other incurrences have been received by Parent in cashfiling), (y) Parent promptly notifies the Company of such substitution shall permit the Parent and reduction its authorized representatives to have reasonable access, during normal business hours and (z) trueupon reasonable advance notice, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceproperties, the obligations books and records of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable relating to the Company than) solely for the conditions precedent set forth in the Debt Commitment Letterpurpose of preparing any such SEC filing or responding to SEC questions, to supplement comments or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of requests on such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectSEC filing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as practicable after the date hereof, all things necessarynecessary to consummate the Equity Financing and the Debt Financing on or before the Closing Date on the terms and subject only to the conditions described in the Equity Financing Commitment and the Debt Financing Commitment (including any “flex” provisions applicable to the Debt Financing Commitment), advisable including by using reasonable best efforts to (i) comply with, maintain in effect and enforce the Debt Financing Commitment in accordance with the terms and subject to the conditions thereof, including if requested giving effect to any “flex” provisions, in each case until the funding of the Debt Financing at or proper prior to arrange and obtain Closing, and, once entered into, any Financing Agreement with respect thereto, (ii) negotiate Financing Agreements with respect to the Debt Financing on the terms and subject to the conditions described contained in the Debt Financing Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any on other provision of the Debt Commitment Letter in a manner that would terms reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable acceptable to Parent than those contained and not in the Debt Commitment Letter, violation of Section 6.15(b) and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, ) all conditions applicable to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Financing Commitment Letterand any Financing Agreements with respect thereto, in each case, to consummate the Debt Financing extent within the control of Parent. Parent and Merger Sub shall, at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding reasonable request of the Debt Financing will beCompany, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep inform the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (or any Alternative Financing).
(b) Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Debt Financing Commitment, in each case, without the prior written consent of the Company if (and only if) such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the net cash proceeds available from the Debt Financing such that Parent would not have, together with the Equity Financing and cash on hand, sufficient cash proceeds to fund the Financing Uses, (ii) impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the receipt of the Debt Financing, andin each case, promptly in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur, or (iii) adversely impact in any material respect the ability of Parent and Merger Sub to enforce its or their rights against the other parties to the Debt Financing Commitment; it being understood that notwithstanding the foregoing, Parent may (1) replace, amend, supplement, or modify or consent to the replacement, amendment, supplement or modification of the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date of this Agreement, and/or (2) make or permit assignments and replacements of an individual lender under the Debt Financing Commitment in connection with the syndication of the Debt Financing. Promptly following request by any amendment, supplement, modification, replacement or waiver of the CompanyDebt Financing Commitment in accordance with this Section 6.15(b), provide Parent shall deliver a copy thereof to the Company copies of all executed and references herein to the “Debt Commitment Letter,” “Fee Letter,” and/or “Debt Financing AgreementsCommitment” shall be deemed to include such documents as amended, supplemented, modified, replaced or waived in compliance with this Section 6.15(b). For the avoidance of doubt, Parent shall not agree to or permit any (i) termination of the Debt Financing Commitment, other than subsequent to, or simultaneously with, obtaining an Alternative Financing, or (ii) reduction of the Debt Financing Commitment, other than in connection with a reduction in the Merger Consideration; provided, that the net cash proceeds available from the Debt Financing as so reduced, together with the Equity Financing and cash on hand, will be sufficient cash proceeds to fund the Financing Uses.
(c) Without limiting Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the foregoingEquity Commitment Letter, in each case, without the prior written consent of the Company if (and only if) such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the net cash proceeds available from the Equity Financing such that the Parent agrees would not have, together with the Debt Financing and cash on hand, sufficient cash proceeds to fund the Financing Uses, (ii) impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the receipt of the Equity Financing, in each case, in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the timely funding of the Equity Financing or the satisfaction of the conditions to obtaining the Equity Financing materially less likely to occur, or (iii) adversely impact in any material respect the ability of Parent and Merger Sub to enforce its or their rights against the other parties to the Equity Commitment Letter.
(d) In the event that any portion of the Debt Financing necessary for the Parent and Merger Sub to fund the Financing Uses becomes unavailable on the terms and conditions contemplated by the Debt Financing Commitment (including the flex provisions) (i) Parent shall promptly notify the Company promptlyand (ii) Parent and Merger Sub shall use their reasonable best efforts to (A) arrange and obtain, as promptly as practicable following the occurrence of such event, financing for any such portion from alternative sources (an “Alternative Financing”) on terms that do not impose new or additional conditions precedent or otherwise expand, amend or modify the conditions precedent to funding in a manner, when considered with all other conditions taken as a whole, would reasonably be expected to materially and adversely affect the ability or likelihood of Parent and Merger Sub to consummate the transactions contemplated by this Agreement and (B) provide the Company with a copy of the new Debt Financing Commitment (if applicable) that provides for such Alternative Financing (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including any related fee letter, which may be redacted to remove references to fee amounts, pricing caps and the economic terms of any flex provisions and other economic terms, provided, that such redactions do not cover terms that could reasonably be expected to affect the conditionality, amount, availability, enforceability or termination of the Alternative Financing). Upon obtaining any commitment for any such Alternative Financing, such financing will be deemed to be a part of the “Debt Financing,” any commitment letter for such Alternative Financing will be deemed the “Debt Commitment Letter” and any fee letter for such Alternative Financing will be deemed to be the “Fee Letter,” in each case, for all purposes of this Agreement, Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Parent or any of its Affiliates be required to pay any fees or any interest rate applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the flex provisions) or agree to terms (including any flex term) materially less favorable in the aggregate (after giving effect to the flex provisions) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof (including the flex provisions).
(e) Parent shall give the Company prompt written notice (but in any event within two (2) Business Days, if at any time prior to the Closing Date ) (i1) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware upon having knowledge of any material breach or material default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event, fact or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would reasonably be expected to affect the availability of result in material breach or material default) by any party to any Debt Commitment Letter or other definitive agreements related to the Debt Financing or (iiicollectively with the Debt Commitment Letter, the “Debt Documents”), (2) a counterparty indicates if for any reason Parent in writing or orally good faith believes that it is likely that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on Letter, (3) of the terms set forth therein. receipt by Parent shall promptly provide or Merger Sub or any information reasonably requested by the Company relating of their respective Affiliates or Representatives of any written notice or other written communication from any Person with respect to any circumstances referred actual or threatened material breach, material default, termination or repudiation by any party to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings Commitment Letter or other incurrences Debt Document, and (4) of debt (including notes) by Parent for all any expiration or termination of any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering in no event shall Parent be required to share any information with the Company that Parent reasonably determines is subject to or would otherwise jeopardize any attorney-client or other incurrence legal privilege.
(f) It is acknowledged and agreed by the Parent and Merger Sub that (i) the obligations of debt does Parent and Merger Sub under this Agreement are not result in a breach or default undersubject to any conditions regarding the Parent’s, Merger Sub’s, their Affiliates’, or violation of, any other Person’s ability to obtain financing for the Debt Commitment Letter, (w) the aggregate amount consummation of the Debt Financing committed transactions contemplated hereby and (ii) compliance (or noncompliance) with this Section 6.15 shall not relieve Parent or Merger Sub of any obligations under this Agreement, including the Debt Commitment Letter following such reduction, together with obligation (subject to the other cash and cash equivalents available to Parent, is sufficient terms hereof) to pay all amounts required due pursuant to be paid in connection with Article II on the Closing Date and to consummate the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings whether or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of not the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectavailable.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject At or prior to the terms Closing, Parent and MergerSub will have sufficient cash and cash equivalents available to perform its obligations hereunder, including payment of the aggregate of the Company Common Stock Merger Consideration and the Option Merger Consideration pursuant to the Merger. Parent has provided to the Company a true and complete copy of an executed commitment letter from GE Commercial Distribution Finance ("GECDF") to provide debt financing in an aggregate amount of $50,000,000 (the "Debt Commitment Letter"). There are no conditions to the funding of the financing described in the Debt Commitment Letter other than the conditions precedent set forth in the Debt Commitment Letter delivered to the Company on the date hereof (the conditions so set forth, the "Disclosed Conditions"), and no Person (other than Parent in the case of clause (ii) below) has any right to (i) impose, and Parent has no obligation to accept, any condition precedent to such funding other than the Disclosed Conditions or (ii) reduce the amounts of the financing commitments made in the Debt Commitment Letter (subject to the Disclosed Conditions). The Debt Commitment Letter is in full force and effect, in all material respects, and there has been no default, action or omission to act that would permit the termination or cancellation of the Debt Commitment Letter. The aggregate proceeds to Parent or MergerSub contemplated by the Debt Commitment Letter, coupled with the Company's cash on hand as of the Effective Time, will be sufficient to enable Parent or MergerSub to make all payments in respect of its obligations pursuant to this Agreement, to repay or refinance debt as contemplated by the Debt Commitment Letter and to pay fees and expenses related to this Agreement, the Debt Commitment Letter and the transactions contemplated hereby and thereby.
(b) Parent shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain satisfy the Debt Financing Disclosed Conditions, in each case on the terms and conditions described in the Commitment Letters. Without limiting the generality of the foregoing, Parent shall (x) negotiate definitive agreements with respect to the Debt Commitment Letter pursuant to on terms and conditions contemplated by the terms thereof Debt Commitment Letter; (including any “market flex” provisionsy) including using use its commercially reasonable best efforts to (i) satisfy on a timely basis all covenants, terms and conditions set forth in the Debt Commitment Letter, including the Disclosed Conditions, and (ii) obtain binding approval from GECDF as contemplated by the Debt Commitment Letter at or prior to Closing; and (z) seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under(collectively, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt "Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(cApprovals"). Parent shall not, nor and shall it not permit any of its Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that would could reasonably be expected to materially impair, delay or prevent consummation of all or any portion of obtaining the Debt Financing.
(d) Financing Approvals. Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings not amend or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underalter, or violation ofagree to amend or alter, the Debt Commitment Letter, (w) Letter in any manner that could reasonably be expected to prevent or materially impair or delay obtaining the aggregate amount Financing Approvals without the prior written consent of the Debt Financing committed under Company. Parent shall give the Company prompt notice of any material breach by any party of the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings which Parent becomes aware or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification any communications from GECDF to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or effect that it may not provide any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Letter. Parent shall keep the Company informed on a current basis in reasonable detail of the status of its efforts to obtain the Financing Approvals.
(c) In the event Parent is unable despite its commercially reasonable efforts to obtain the Financing Approvals, Parent shall, as modified pursuant promptly as practicable following the occurrence of such event: (A) use its commercially reasonable efforts to clause arrange to obtain an alternative credit facility (ii"Alternative Facility") belowon comparable or more favorable terms to Parent (as determined in the reasonable judgment of Parent) as those contained in the Debt Commitment Letter. Parent shall provide the Company with a copy of any new financing commitment for such Alternative Facility (a "New Commitment Letter") promptly (and in any event within one (1) Business Day of its receipt of the same). In the event one or more New Commitment Letter(s) is/are entered into for an Alternative Facility, (ii) any reference references in this Agreement to the “Debt Commitment Letter” Financing Approvals shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter refer to the extent then in effect, Alternative Facility and (iii) any reference references in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any shall be deemed to refer to the New Commitment Letter(s), as applicable, and Parent's representations, warranties, covenants and agreements in this Agreement with respect to the Debt Commitment Letter at and the time in question and each New Debt Commitment Letter Financing Approvals shall apply to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger Alternative Facility and the transactions contemplated by this AgreementNew Commitment Letter(s), as applicable.
Appears in 1 contract
Financing.
(a) Subject to the terms and conditions of this AgreementAgreement (including Section 4.12), Parent Investor shall use its reasonable best efforts to take, or cause arrange for the Company to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the proceeds of the Debt Financing on the terms and conditions (including the “flex” provisions) described in the Debt Financing Commitment Letter pursuant to and the terms thereof (including any “market flex” provisions) Fee Letter, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter (i) except as otherwise permitted by this Section 4.11(a), maintain in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from effect the Debt Financing or (B) imposes new or additional conditions Commitment in accordance with the terms and subject to the initial funding or otherwise expands any conditions thereof, (ii) assist in the satisfaction on a timely basis (giving effect to the anticipated timing of the Marketing Period) of all conditions applicable to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Company in a manner that would reasonably be expected to (x) delay or prevent the funding in full of obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms set forth in the Equity Financing Commitment at or satisfaction prior to Closing), and (iii) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions (including the “flex” provisions) contemplated by the Debt Financing Commitment and the Fee Letter (provided that, upon request by ITW, Investor shall provide copies thereof to ITW on a current basis and consider in good faith any changes or comments thereto proposed by ITW and otherwise keep ITW reasonably informed on a current basis of the conditions status of its efforts to arrange the Debt Financing and afford ITW and the Company reasonable opportunity to attend and participate in any scheduled meetings or negotiations relating to the Debt Financing) on the Closing Date). Investor shall not, and shall not agree with Guarantor to, enter into any amendment, supplement or other modification of, or (y) adversely affect the ability waive any of Parent to enforce its rights against other parties to under, the Equity Financing Commitment. Investor may, without the consent of ITW, (x) amend, replace or modify the Debt Financing Commitment Letter or and the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would or (y) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitment, except for any amendment, replacement, modification, consent or waiver set forth in Schedule 4.11, each of which shall require the prior written consent of ITW, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from or reducing the total amount of funds available under the Debt Financing, provided that, in either case, the representations and warranties set forth in the last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the conditions to closing in Section 6.2 (other than those conditions that by their nature will not reasonably be expected satisfied until the Closing and subject to delay or prevent and in accordance with the Closingterms of the Equity Financing Commitment). Parent Subject to the terms and conditions of this Agreement (including Section 4.12), in the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Investor shall promptly deliver notify ITW and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company trueat the Closing will be sufficient to perform its obligations hereunder, (2) with conditions to closing and funding which are not, when taken as a whole, more onerous than those in the Debt Financing Commitment, and (3) which shall not (subject to clause (y) of the second sentence of this Section 4.11) include terms that would require ITW’s consent pursuant clause (y) of the second sentence of this Section 4.11. Investor shall promptly (upon reasonable request by ITW) deliver to ITW true and complete and correct copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by ITW) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with any portion of the Debt Financing. For purposes of this Section 4.11, Section 3.6 and Section 4.12, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitment as permitted by this Section 4.11 to be amended, modified or replaced and references to “Debt Financing Commitment” and “Fee Letter” shall include such documents as permitted by this Section 4.11 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
(b) Parent shallNothing contained in this Agreement or otherwise shall require, and in no event shall the reasonable best efforts of Investor be deemed or construed to require, Investor to bring any enforcement action against any source of the Financing to enforce its rights under the Financing Commitments, except that (i) Investor shall enforce, including by bringing suit for specific performance, the Equity Financing Commitment solely if ITW seeks and is granted a decree of specific performance of the obligations pursuant to the terms of this Agreement to cause its Affiliates the Equity Financing to be funded to fund the Investment and Representatives toto consummate the Investment after all conditions to the granting therefor set forth in Section 10.3(b) have been satisfied and (ii) following a written request by ITW, Investor shall use its reasonable best efforts to enforce (Aincluding by litigation) to maintain in effect its rights under the Debt Financing Commitment Letter (provided that to cause the Debt Commitment Letter may be amendedFinancing Sources thereunder to, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) subject to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in of the Debt Financing Commitment Letter, (C) to satisfy on a timely basis (and the satisfaction or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate conditions in ARTICLE VI hereof, fund the Merger, all conditions to receipt of the full amount applicable portion of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Investment Agreement
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions expressly described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(sto: (a) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt commitment for the Financing set forth in the Commitment Letter Letters on terms and conditions no less favorable to Buyer (provided that when taken as a whole) than those contemplated by the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), Letters (Bincluding after giving effect any related flex provisions) to and (b) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are in the aggregate not materially less favorable to Parent Buyer (when taken as a whole) than the terms and conditions expressly contemplated by the Commitment Letters (including after giving effect any related flex provisions) or on other terms that would not reasonably be expected to prevent or substantially delay Buyer’s ability to consummate the Closing or would add new (or adversely modify any existing) conditions to the consummation of the Debt Financing as compared to those contained in the Debt Commitment Letter as in effect on the Agreement Date. Buyer shall give Seller prompt notice (and in any event no later than three (3) Business Days following) of (i) any breach in any material respect by any party of any Commitment Letter of which Xxxxx becomes aware that would reasonably be expected to prevent or substantially delay the availability of the Financing that is required to consummate the Closing, (ii) if and when Buyer becomes aware that any portion of the Financing that is required to consummate the Closing contemplated by any Commitment Letter would reasonably be expected to not be available to consummate the Contemplated Transaction, and (iii) of any termination of any Commitment Letter. If any portion of the Debt Financing becomes unavailable on the terms and conditions expressly contemplated in the Debt Commitment Letter, (C) which unavailability would reasonably be expected to satisfy on a timely basis (prevent or obtain the waiver of), and in a manner that will not impede the substantially delay Buyer’s ability of the parties to consummate the MergerClosing, all conditions Buyer shall use reasonable best efforts to receipt of the full obtain alternative financing, including from alternative sources in an amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, sufficient for Buyer to consummate the Debt Financing at or prior to the Closing, with terms and conditions not materially less favorable to Buyer (Dwhen taken as a whole) to comply with its obligations under than the Debt Commitment Letter, terms and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or(the “Alternative Financing”). Buyer shall not permit any material amendment, upon funding restatement, amendment and restatement, supplement or modification of the Debt Commitment Letter, or any waiver of any material provision or remedy thereunder to the extent that such amendment, restatement, amendment and restatement, supplement, modification or waiver (i) adds new (or adversely modifies any existing) conditions to the consummation of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts as compared to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under those in the Debt Commitment Letter and definitive financing agreements and to fund as in effect on the Agreement Date or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware reduces the aggregate amount of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), if such breach or default reduction would reasonably be expected to affect prevent or substantially delay Buyer’s ability to consummate the availability of the Debt Financing or (iii) a counterparty indicates Closing, in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates toeach case, without the prior written consent of Seller. Notwithstanding the Companyforegoing, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent compliance by Buyer with this Section 6.10 shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any relieve Buyer of its Affiliates’ obtaining funds obligation to consummate the Merger and Contemplated Transaction, whether or not the transactions contemplated by this AgreementFinancing or the Alternative Financing is available.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Advance Auto Parts Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates (including the Subsidiary) as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.or
Appears in 1 contract
Samples: Purchase and Sale Agreement
Financing. (a) Subject to the terms Parent and conditions of this Agreement, Parent Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as practicable after the date hereof, all things necessarynecessary to consummate the Equity Financing and the Debt Financing on or before the Closing Date on the terms and subject only to the conditions described in the Equity Financing Commitment and the Debt Financing Commitment (including any “flex” provisions applicable to the Debt Financing Commitment), advisable including by using reasonable best efforts to (i) comply with, maintain in effect and enforce the Debt Financing Commitment in accordance with the terms and subject to the conditions thereof, including if requested giving effect to any “flex” provisions, in each case until the funding of the Debt Financing at or proper prior to arrange and obtain Closing, and, once entered into, any Financing Agreement with respect thereto, (ii) negotiate Financing Agreements with respect to the Debt Financing on the terms and subject to the conditions described contained in the Debt Financing Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any on other provision of the Debt Commitment Letter in a manner that would terms reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable acceptable to Parent than those contained and not in the Debt Commitment Letter, violation of Section 6.15(b) and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, ) all conditions applicable to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Financing Commitment Letterand any Financing Agreements with respect thereto, in each case, to consummate the Debt Financing extent within the control of Parent. Parent and Merger Sub shall, at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding reasonable request of the Debt Financing will beCompany, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep inform the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing (or any Alternative Financing).
(b) Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the Debt Financing Commitment, in each case, without the prior written consent of the Company if (and only if) such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the net cash proceeds available from the Debt Financing such that Parent would not have, together with the Equity Financing and cash on hand, sufficient cash proceeds to fund the Financing Uses, (ii) impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the receipt of the Debt Financing, andin each case, promptly in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the timely funding of the Debt Financing or the satisfaction of the conditions to obtaining the Debt Financing materially less likely to occur, or (iii) adversely impact in any material respect the ability of Parent and Merger Sub to enforce its or their rights against the other parties to the Debt Financing Commitment; it being understood that notwithstanding the foregoing, Parent may (1) replace, amend, supplement, or modify or consent to the replacement, amendment, supplement or modification of the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date of this Agreement, and/or (2) make or permit assignments and replacements of an individual lender under the Debt Financing Commitment in connection with the syndication of the Debt Financing. Promptly following request by any amendment, supplement, modification, replacement or waiver of the CompanyDebt Financing Commitment in accordance with this Section 6.15(b), provide Parent shall deliver a copy thereof to the Company copies of all executed and references herein to the “Debt Commitment Letter,” “Fee Letter,” and/or “Debt Financing AgreementsCommitment” shall be deemed to include such documents as amended, supplemented, modified, replaced or waived in compliance with this Section 6.15(b). For the avoidance of doubt, Parent shall not agree to or permit any (i) termination of the Debt Financing Commitment, other than subsequent to, or simultaneously with, obtaining an Alternative Financing, or (ii) reduction of the Debt Financing Commitment, other than in connection with a reduction in the Merger Consideration; provided, that, the net cash proceeds available from the Debt Financing as so reduced, together with the Equity Financing and cash on hand, will be sufficient cash proceeds to fund the Financing Uses.
(c) Without limiting Parent shall not agree to or permit any amendment, supplement or other modification or replacement of, or any termination or reduction of, or grant any waiver of, any condition, remedy or other provision under the foregoingEquity Commitment Letter, in each case, without the prior written consent of the Company if (and only if) such amendment, supplement, modification, replacement or waiver would or would reasonably be expected to (i) reduce the net cash proceeds available from the Equity Financing such that the Parent agrees would not have, together with the Debt Financing and cash on hand, sufficient cash proceeds to fund the Financing Uses, (ii) impose new or additional conditions or otherwise expand, amend or modify any condition precedent to the receipt of the Equity Financing, in each case, in a manner that would reasonably be expected to (A) delay or prevent the Closing, or (B) make the timely funding of the Equity Financing or the satisfaction of the conditions to obtaining the Equity Financing materially less likely to occur, or (iii) adversely impact in any material respect the ability of Parent and Merger Sub to enforce its or their rights against the other parties to the Equity Commitment Letter.
(d) In the event that any portion of the Debt Financing necessary for the Parent and Merger Sub to fund the Financing Uses becomes unavailable on the terms and conditions contemplated by the Debt Financing Commitment (including the flex provisions) (i) Parent shall promptly notify the Company promptlyand (ii) Parent and Merger Sub shall use their reasonable best efforts to (A) arrange and obtain, as promptly as practicable following the occurrence of such event, financing for any such portion from alternative sources (an “Alternative Financing”) on terms that do not impose new or additional conditions precedent or otherwise expand, amend or modify the conditions precedent to funding in a manner, when considered with all other conditions taken as a whole, would reasonably be expected to materially and adversely affect the ability or likelihood of Parent and Merger Sub to consummate the transactions contemplated by this Agreement and (B) provide the Company with a copy of the new Debt Financing Commitment (if applicable) that provides for such Alternative Financing (including all related exhibits, schedules, annexes, supplements and term sheets thereto, and including any related fee letter, which may be redacted to remove references to fee amounts, pricing caps and the economic terms of any flex provisions and other economic terms, provided that such redactions do not cover terms that could reasonably be expected to affect the conditionality, amount, availability, enforceability or termination of the Alternative Financing). Upon obtaining any commitment for any such Alternative Financing, such financing will be deemed to be a part of the “Debt Financing,” any commitment letter for such Alternative Financing will be deemed the “Debt Commitment Letter” and any fee letter for such Alternative Financing will be deemed to be the “Fee Letter,” in each case, for all purposes of this Agreement, Notwithstanding anything to the contrary contained in this Agreement, in no event shall the Parent or any of its Affiliates be required to pay any fees or any interest rate applicable to the Alternative Financing in excess of those contemplated by the Debt Commitment Letter as in effect on the date hereof (including the flex provisions) or agree to terms (including any flex term) materially less favorable in the aggregate (after giving effect to the flex provisions) to Parent than such term contained in the Debt Commitment Letter as in effect on the date hereof (including the flex provisions).
(e) Parent shall give the Company prompt written notice (but in any event within two (2) Business Days, if at any time prior to the Closing Date ) (i1) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware upon having knowledge of any material breach or material default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement event, fact or (B) any other party to the Debt Commitment Letter circumstance that, with or any Debt Financing Agreement ifwithout notice, in the case lapse of this clause (B)time or both, such breach or default would reasonably be expected to affect the availability of result in material breach or material default) by any party to any Debt Commitment Letter or other definitive agreements related to the Debt Financing or (iiicollectively with the Debt Commitment Letter, the “Debt Documents”), (2) a counterparty indicates if for any reason Parent in writing or orally good faith believes that it is likely that it will not provide, or it refuses be able to provide, obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter on Letter, (3) of the terms set forth therein. receipt by Parent shall promptly provide or Merger Sub or any information reasonably requested by the Company relating of their respective Affiliates or Representatives of any written notice or other written communication from any Person with respect to any circumstances referred actual or threatened material breach, material default, termination or repudiation by any party to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings Commitment Letter or other incurrences Debt Document, and (4) of debt (including notes) by Parent for all any expiration or termination of any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering in no event shall Parent be required to share any information with the Company that Parent reasonably determines is subject to or would otherwise jeopardize any attorney-client or other incurrence legal privilege.
(f) It is acknowledged and agreed by the Parent and Merger Sub that (i) the obligations of debt does Parent and Merger Sub under this Agreement are not result in a breach or default undersubject to any conditions regarding the Parent’s, Merger Sub’s, their Affiliates’, or violation of, any other Person’s ability to obtain financing for the Debt Commitment Letter, (w) the aggregate amount consummation of the Debt Financing committed transactions contemplated hereby and (ii) compliance (or noncompliance) with this Section 6.15 shall not relieve Parent or Merger Sub of any obligations under this Agreement, including the Debt Commitment Letter following such reduction, together with obligation (subject to the other cash and cash equivalents available to Parent, is sufficient terms hereof) to pay all amounts required due pursuant to be paid in connection with Article II on the Closing Date and to consummate the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings whether or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of not the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectavailable.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject Parent and Sub shall use their best efforts to satisfy all conditions applicable to Parent and Sub in the Financing Commitment and to consummate the Financing no later than the Outside Date. Solely in the event that any portion of the Financing becomes unavailable on the terms and conditions of this Agreementcontemplated in the Financing Commitment, Parent shall use its reasonable best efforts to take, obtain any such unavailable portion from alternative sources on comparable or cause more favorable terms to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described Parent (as determined in the Debt Commitment Letter pursuant to reasonable good-faith judgment of Parent) as promptly as practicable following the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under occurrence of such event but in no event later than the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderOutside Date. Parent shall not, without promptly provide the Company’s prior written consent, Company with the documentation evidencing any replacement or alternative sources of financing and shall give the Company prompt notice (but in any event within two Business Days) of any material breach by any party to the Financing Commitment or any termination of the Financing Commitment. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange for the Financing (or replacements thereof) and shall not permit any amendment, supplement, replacement material amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Financing Commitment Letter (or replacements thereof) without first consulting with the Company or, if such amendment, supplement, replacement, modification amendment would or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would be reasonably be expected to (x) prevent, delay or prevent hinder Parent’s and/or Sub’s ability to consummate the funding in full Transactions, without first obtaining the Company’s prior written consent. For the avoidance of doubt, if the Debt Financing (or satisfaction of any replacement or alternative financing) has not been obtained, Parent and Sub shall continue to be obligated to consummate the conditions to Merger and the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) Transactions on the terms contemplated by this Agreement and conditions that are not materially less favorable subject only to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (satisfaction or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, Article VII and to consummate the Debt Financing at or prior to the Closing, (D) to comply with its Parent’s rights and obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsArticle VIII.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, as promptly as possible, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Equity Commitment Letter and the Debt Commitment Letter, including maintaining in effect the Equity Commitment Letter and the Debt Commitment Letter and using reasonable best efforts to, as promptly as possible, satisfy on a timely basis all conditions applicable to Buyer obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms thereof of the Equity Commitment Letter and the Debt Financing pursuant to the terms of the Debt Commitment Letter). Buyer shall give Seller prompt written notice (including i) of any “market flex” provisionsmaterial breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a breach or default) including using its by any party to the Equity Commitment Letter or the Debt Commitment Letter of which Buyer becomes aware, (ii) of the receipt of any written notice or other written communication from any Person with respect to any (A) actual or potential breach, default, termination or repudiation by any party to the Equity Commitment Letter or the Debt Commitment Letter or (B) material dispute or disagreement between or among any parties to the Equity Commitment Letter or the Debt Commitment Letter (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing), (iii) in the event Buyer becomes aware that any portion of the Financing is not reasonably likely to be available to consummate the transactions contemplated by this Agreement and (iv) of any termination of the Equity Commitment Letter or the Debt Commitment Letter. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, Buyer shall, without limiting the obligations of Buyer set forth in the immediately following sentence, use reasonable best efforts to seek arrange to enforce its rights under obtain alternative financing, including from alternative sources, on terms in the aggregate not materially less favorable to Buyer (in the reasonable judgment of Buyer) than the Debt Financing contemplated by the Debt Commitment Letter in an amount sufficient to consummate the transactions contemplated hereby (“Alternative Financing”) as promptly as practicable following the occurrence of such event and the provisions of a breach thereof by this Section 6.10 and Section 9.9 shall be applicable to the financing provider(s) thereunderAlternative Financing, and, for the purposes of this Section 6.10 and Section 9.9, all references to the Debt Financing shall be deemed to include such Alternative Financing, all references to the Debt Commitment Letter shall include the applicable documents for the Alternative Financing and all references to the Debt Financing Sources shall include the Persons providing or arranging the Alternative Financing. Parent Buyer shall notnot permit, without the Company’s prior written consentconsent of the Company, permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt any Commitment Letter if such amendment, supplement, replacement, modification or waiver 46
(Ab) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions Prior to the initial funding or otherwise expands any of Closing, Seller shall use its reasonable best efforts, and shall cause the conditions Company and the Subsidiary to use their reasonable best efforts to provide, to the receipt of the Debt Financingextent within their applicable control, or otherwise expandsBuyer, amends or modifies any other provision of the Debt Commitment Letter such customary cooperation reasonably requested by Buyer, at Buyer’s sole expense, in a manner that would reasonably be expected to (x) delay or prevent the funding in full of connection with the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, however, that Parent may amend such requests shall not unreasonably interfere with the Debt Commitment Letter to add or replace lendersongoing operations of Seller and its Affiliates, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to including the Company trueand the Subsidiary), complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use including using its reasonable best efforts to do the following: (Ai) to maintain furnishing Buyer with such financial information set forth in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to paragraph number 5 of the Debt Commitment Letter (the “Required Financial Information”) and other customary financial information as reasonably requested by Buyer to enable Buyer to prepare pro forma financial statements, in each case, to the extent customary and reasonably required pursuant to such Debt Financing Agreements”and to the extent reasonably available; (ii) on causing a member of the terms Company’s management team, with appropriate seniority and conditions that are not materially less favorable expertise, at reasonable times and upon reasonable notice, to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and participate in a manner that will not impede the ability limited number of the parties presentations to consummate the Merger, all conditions to receipt of the full amount of and meetings with the Debt Financing at Sources; (iii)
(A) assisting with the Closing set forth therein that are within its control preparation of customary syndication documents and materials required or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate reasonably requested by the Debt Financing Sources in connection with the Debt Financing; provided, however, that any such customary syndication documents and materials shall contain disclosure and pro forma financial statements reflecting Buyer as the obligor; and (B) executing and delivering customary authorization letters relating to the Debt Financing; (iv) (A) to assist in the preparation of definitive financing documentation and the schedules and exhibits thereto (including loan agreements, guarantees, collateral agreements, hedging arrangements, and customary officer’s and other closing certificates) as may reasonably be requested; and (B) to facilitate the pledging of collateral, it being understood that such documents will not take effect until on or after the Closing; (v) obtaining any Lien releases, terminations and instruments of discharge (including UCC termination statements); and (vi) furnishing Buyer promptly with all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, as amended, that has been reasonably requested by Buyer in writing, at least 10 days prior to the Closing Date.
(c) Notwithstanding the requirements of Section 6.10(b), (i) Buyer shall be solely responsible for provision of any post-Closing pro forma financial information, including cost savings, synergies, capitalization, ownership or other pro forma adjustments and any financial projections of the Company for and after the Closing, (ii) neither the Company nor the Subsidiary or their respective Representatives shall be required to enter into any certificate, document, agreement or instrument which will be effective prior to the Closing, (Diii) none of Seller, the Company or the Subsidiary will be required to comply pay any commitment or other similar fee or incur any other liability in connection with its obligations under the Debt Commitment LetterFinancing prior to the Closing, and (Eiv) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub nothing herein shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.47
(d) Parent shall have the right to substitute the net cash proceeds received Buyer will promptly, upon request by Parent after the date hereof Seller, reimburse Seller for all reasonable out-of-pocket costs and prior to the Closing from consummated offerings or other incurrences of debt expenses (including notesreasonable attorneys’ fees) incurred by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation ofSeller, the Debt Commitment Letter, (w) Company or the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid Subsidiary in connection with the transactions cooperation of Seller, the Company and the Subsidiary contemplated by this AgreementSection 6.10(b). Buyer will indemnify and hold harmless Seller, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under , the Debt Commitment Letter have been reduced to zero Subsidiary and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs or expenses suffered or incurred by any of them in connection with the preceding sentence, the obligations arrangement of the Company Financing (including any action taken in accordance with this Section 6.10) and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information used in connection with the transactions contemplated by this Agreement and all conditions precedent therewith. 6.11 R&W Policy. Prior to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent Buyer shall provide all funds required obtain the R&W Policy, and Seller agrees to effect reasonably cooperate with Buyer in connection therewith, provided that such R&W Policy will contain customary terms and conditions, including without limitation, the repayment insurer thereunder expressly waiving and agreeing not to pursue, directly or indirectly, any subrogation rights against the Seller or its Affiliates (other than in connection with fraud by Seller or its Affiliates) with respect to any claim made by any insured thereunder. From and after the issuance of all indebtedness under the Company Credit Agreement R&W Policy, Buyer shall not amend the R&W Policy in full any manner adverse to Seller without the Seller’s prior written consent or which would otherwise give the insurer thereunder a right to pursue, directly or indirectly, any subrogation rights against Seller or its Affiliates (other than in accordance connection with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s fraud by Seller or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Black Box Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Letter, after giving effect to the market flex terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Fee Letter, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made toto (other than to amend the Financing Letter to add lenders, lead arrangers, book runners, syndication agents or similar entities who had not executed the Financing Letter as of the date of this Agreement), or any waiver of any provision or remedy under, the Debt Commitment Financing Letter or the Fee Letter, if such amendment, supplement, replacement, modification or waiver (Ai) reduces the aggregate amount of the cash proceeds from the Debt Financing or (Bii) imposes new or additional conditions to the initial funding or other terms or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter terms in a manner that would reasonably be expected to (x) delay or prevent the Closing (y) make the timely funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, Financing less likely to occur or (yz) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Financing Letter or the definitive agreements with respect thereto (thereto; provided that Buyer shall have the right to substitute other financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, further, that Parent may amend such substitution shall only be permitted if (i) the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action terms thereof would not be reasonably expected to delay or prevent the Closing or make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur and (ii) the conditions to the Financing set forth in the Financing Letter would not be expanded or modified in a manner that would reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of provided, still further, that any such amendmentsubstitute financing shall not obligate any of Seller or its Affiliates (including the Subsidiary) as a surety, modification guarantor or replacementindemnitor or to extend credit to any Person. Any reference in this Agreement to (A) “Financing,” shall include the financing contemplated by the Financing Letter as amended or modified in compliance with this Section 6.9(a) and (B) “Financing Letter,” and “Fee Letter” shall include such documents as amended or modified in compliance with this Section 6.9(a).
(b) Parent shall, and Buyer shall cause its Affiliates and Representatives to, use its reasonable best efforts (Ai) to maintain in effect the Debt Commitment Financing Letter (provided that in accordance with the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)terms and subject to the conditions thereof, (Bii) to negotiate and enter into all definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Financing Letter, including the market flex provisions in the Fee Letter, and (Ciii) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to such definitive agreements and consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent Buyer shall keep the Company informed on a current basis and in reasonable detail Seller reasonably apprised of the status of its efforts the Financing and developments with respect thereto (including giving Seller prompt notice of any material change with respect to arrange the Debt such Financing, and, promptly following request by the Company, ) and shall provide to the Company Seller copies of all executed Debt Financing Agreements.
(c) material definitive documents related to the Financing. Without limiting the generality of the foregoing, Parent Buyer agrees to notify the Company Seller promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (ix) the Debt Commitment Financing Letter is shall expire or be terminated for any reason, (iiy) Parent becomes aware any of any breach or default (A) by any Financing Source party the other parties to the Debt Commitment Financing Letter or any Debt Financing Agreement or (B) any other notify Buyer that such party no longer intends to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter provide financing on the terms set forth therein. Parent therein or (z) to Buyer’s knowledge (without a requirement of due inquiry), any of the other parties to the Financing Letter is or is alleged to be in breach or default thereunder.
(c) To the extent necessary to complete the transactions contemplated hereby, Buyer shall promptly provide any information reasonably requested use its reasonable best efforts to cause the parties providing Financing to fund on the Closing Date the Financing required to consummate the transactions contemplated hereby and the other transactions contemplated by the Company relating Financing Letter, including by taking enforcement action, if all conditions in the Financing Letter and all conditions to any circumstances referred to Closing contained in this Section 6.13(c). Parent shall notAgreement are satisfied or waived, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably upon funding will be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financingsatisfied.
(d) Parent If the Financing Letter shall have be terminated or modified in a manner materially adverse to Buyer, if the right to substitute Financing Letter shall be materially breached or repudiated by the net cash proceeds received by Parent after the date hereof and prior other parties to the Closing from consummated offerings Financing Letter, or other incurrences of debt (including notes) by Parent for all or if any portion of the Debt Financing by reducing commitments under becomes unavailable on the Debt Commitment Letter; provided that terms and conditions contemplated in the Financing Letter (vother than as a result of obtaining substitute debt financing in accordance with Section 6.9(a)) (such offering or other incurrence of debt does event, an “Original Financing Failure”), Buyer shall use its reasonable best efforts to arrange promptly to obtain alternative financing from alternative sources on terms and conditions not result less favorable to Buyer than those contained in a breach or default under, or violation of, the Debt Commitment Letter, (w) Financing Letter and the aggregate Fee Letter and in an amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification at least equal to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceFinancing or such unavailable portion thereof, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of case may be (the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Alternate Financing”). True, correct and complete copies of each alternative to obtain a new financing commitment in letter with respect of to such Alternative Debt Alternate Financing (each, a the “New Debt Commitment Financing Letter”), together with all related fee letters and associated engagement letters which shall replace the existing Financing Letter, provided that any such Alternate Financing shall not obligate any of Seller or its Affiliates as a surety, guarantor or indemnitor or to extend credit to any Person (solely the terms described in this proviso “Prohibited Alternate Terms”). Buyer shall not execute a New Financing Letter or consummate any Alternate Financing, without the case written consent of the fee letterSeller, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, if (i) any reference the terms of the New Financing Letter or Alternate Financing are, in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.aggregate,
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Subsidiary shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms terms, and conditions described subject to the conditions, set forth in the Debt Commitment Letter pursuant Financing Letters. Parent and Merger Subsidiary shall be permitted to the terms thereof amend or modify, or waive any provision under, or supplement or replace in whole or in part (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under through co-investments or by financing from one or more additional parties), the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Financing Letters; provided, that Parent and Merger Subsidiary shall notnot effect any such amendment, modification, waiver, supplement or replacement without the Company’s prior written consent, permit any amendment, supplement, replacement or modification consent (not to be made tounreasonably withheld, conditioned or any waiver of any provision under, the Debt Commitment Letter delayed) if such amendment, supplementmodification, waiver, supplement or replacement, modification or waiver :
(Ai) reduces (or could have the effect of reducing) the aggregate amount of the cash proceeds from the Debt Financing or Financing;
(Bii) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing Letters, in each case, in a manner that would reasonably be expected to (x) delay or prevent or make materially less likely the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, ; or (yiii) otherwise adversely affect impact the ability of Parent or Merger Subsidiary to enforce its their rights against other parties to the Debt Commitment Letter Financing Letters or the any definitive agreements with respect thereto (provided, that Parent may amend or otherwise to timely consummate the Debt Commitment Letter to add or replace lendersFinancing and the Merger, lead arrangersin the case of (i) through (iii) above, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of in any such amendment, modification or replacementmaterial respect.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) Subject to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable of this Agreement, each of Parent and Merger Subsidiary shall use its commercially reasonable best efforts to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of)Equity Financing on the terms, and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence andthe conditions, upon satisfaction of the conditions set forth in the Debt Equity Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing AgreementsLetters.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained hereinin this Agreement, Parent’s obligations hereunder are not subject nothing contained in this Agreement shall require, and in no event shall the reasonable best efforts of Parent or Merger Subsidiary be deemed or construed to a condition regarding Parent’s require, either Parent or Merger Subsidiary to (i) pay any fees or other amounts related to the Debt Financing in excess of those contemplated by the Debt Financing Letters or (ii) threaten, commence or pursue litigation, arbitration or other adversarial proceedings against any financing source (whether of debt or equity) or affiliate thereof. Notwithstanding anything to the contrary contained in this Agreement, the Company acknowledges and agrees that it (i) derives no contractual rights, whether as third party beneficiary or otherwise, under the Debt Financing Letters, Equity Commitment Letters or any debt or equity financing document related to the Debt Financing and Equity Financing and shall not be entitled to enforce any such Debt Financing Letters or Equity Commitment Letters or documents against any agent, arranger, bookrunner, lender, letter of its credit issuer or other financing party that is a party to any such Debt Financing Letters, Equity Commitment Letters or document (including, without limitation, GSO Capital Partners LP, PNC National Bank and their respective Affiliates’ obtaining funds ) (collectively, the “Financing Group”) and (ii) waives any claim (including, without limitation, any claim under contract, any claim in tort and any claim for specific performance) it may have against any member of the Financing Group with respect to consummate the failure of the Debt Financing or Equity Financing to close; provided that nothing contained in this sentence shall prevent the Company from enforcing any of the terms of this Agreement against the Parent or Merger and the transactions contemplated by this AgreementSubsidiary (including under Section 11.13).
Appears in 1 contract
Samples: Merger Agreement
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable or proper to arrange and obtain the Debt Financing as promptly as practicable on the terms and conditions described in the Debt Financing Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. provided that Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement and Merger Sub may replace or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from amend the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of June 7, 2007, or otherwise so long as such action replacement or amendment would not reasonably be expected adversely impact or delay in any material respect the ability of Parent or Merger Sub to delay consummate the transactions contemplated hereby or prevent the Closinglikelihood of the consummation of the transactions contemplated hereby). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its including using reasonable best efforts to (Ai) to maintain in effect the Debt Commitment Letter Financing Commitment, subject to the foregoing replacement and amendment rights, (provided that ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Debt Financing set forth in the Debt Financing Commitment Letter may be amended, supplemented, replaced, modified that are within their control (including by consummating the financing pursuant to the terms of the Equity Financing Commitments and by assisting in the syndication or waived as provided in this Section 6.13), marketing of the financing contemplated by the Debt Financing Commitment) and (Biii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially less favorable contemplated by the Debt Financing Commitment or on other terms reasonably acceptable to Parent than those contained that would not adversely impact in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede any material respect the ability of the parties Parent or Merger Sub to consummate the Merger, all transactions contemplated hereby. Subject to the terms and conditions to receipt of contained herein and the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in Annex A, at the Debt Commitment LetterShare Purchase Date, to consummate Parent shall draw down on the Offer Financing if the conditions in the Debt Financing at or prior Commitment relating to the Closinginitial funding of the Offer Financing are then satisfied (other than, (D) to comply in connection with its obligations under the Debt Commitment LetterFinancing, the availability of funding of any of the Equity Commitments). Subject to the terms and (E) to consummate conditions contained herein and the satisfaction of the conditions set forth in Section 7.1, at the Effective Date, Parent shall draw down on the Debt Financing at or prior to if the Effective Time. In the event that all applicable conditions precedent expressly set forth in the Debt Financing Commitment Letter have been orare then satisfied. Without limiting Parent’s obligations under this Section 6.13, upon funding if any portion of the Debt Financing will be, satisfiedbecomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent and Sub shall use their its reasonable best efforts to enforce their rights under, arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and cause Merger Sub in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event. Parent shall give the Company prompt notice of any material breach by any party to the Financing SourcesCommitments of which Parent or Merger Sub becomes aware, lenders and or any termination of the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt FinancingCommitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, Financing and provide to the Company copies of all executed documents related to the Debt Financing Agreements(other than any ancillary documents subject to confidentiality agreements) to the Company.
(cb) Without limiting Prior to the foregoingClosing, Parent agrees to notify the Company promptlyshall provide to Parent and Merger Sub, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of cause its Affiliates Subsidiaries to, without and shall use its reasonable best efforts to cause the prior written consent of the Companyrespective officers, take any action or enter into any transaction that would reasonably be expected to materially impairemployees and advisors, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof including legal and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underaccounting, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to, provide to Section 6.14 Parent and Merger Sub all cooperation reasonably requested in writing by Parent that is reasonably necessary or customary in connection with the Financing (provided that such requested cooperation does not unreasonably interfere with the business or operations of the Company and its Subsidiaries), including (i) participating in a reasonable number of meetings, presentations, road shows, due diligence sessions and sessions with rating agencies, (ii) using commercially reasonable efforts to assist with the preparation of materials for rating agency presentations, offering documents, private placement memoranda, bank information memoranda, prospectuses and similar documents necessary or customary in connection with the Financing, (iii) using commercially reasonable best efforts to furnish Parent and Merger Sub as promptly as reasonably practicable with financial and other pertinent information regarding the Company and its Subsidiaries as may be reasonably requested by Parent in connection with the Debt Financing and customarily included in private placement memoranda relating to private placements under Rule 144A promulgated under the Securities Act to consummate the offering(s) of debt securities contemplated by the Debt Financing Commitments at the time during the Company’s fiscal year such offering(s) will be made as soon as such financial and other information becomes available, including all financial statements and financial data of the type required by Regulation S-X and Regulation S-K under the Securities Act (other than Rule 3-10 of Regulation S-X and summary quarterly financial information and without giving effect to the executive compensation and related person disclosure rules related to SEC Release Nos. 33-8732A; 34-54302A; IC-27444A), including audits thereof to the extent so required (which audits shall no longer be unqualified) (all such information in effect. Furtherthis clause (iii), the “Required Information”), (iv) using reasonable best efforts to assist Parent shall have in procuring accountants’ comfort letters and consents, legal opinions, surveys and title insurance and other customary documentation required by the right Debt Financing Commitments, in each case as reasonably requested by Parent and, if reasonably requested by Parent or Merger Sub, to substitute commitments cooperate with and assist Parent or Merger Sub in respect obtaining such documentation and items, (v) using commercially reasonable efforts to provide monthly financial statements (excluding footnotes) within the time frame, and to the extent, the Company prepares such financial statements in the ordinary course of business, (vi) using reasonable best efforts to assist Parent in procuring the execution and delivery, as of the Effective Time, by the officers of the Surviving Corporation and its Subsidiaries of any customary pledge and security documents, other financings for all definitive financing documents, or other certificates, legal opinions or documents as may be reasonably requested by Parent (including a certificate of the Chief Financial Officer of the Surviving Corporation or any portion Subsidiary with respect to solvency matters) and otherwise reasonably facilitating, to the extent reasonably requested by Parent, the pledging of collateral (including cooperation, to the extent reasonably requested by Parent, in connection with the pay-off of existing indebtedness and the release of related Liens), (vii) taking all actions to the extent reasonably requested by Parent necessary to (A) permit the prospective lenders involved in the Financing to evaluate the Company’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (B) establish bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing, and (viii) taking all corporate actions, subject to the occurrence of the Closing, reasonably requested by Parent in connection with the consummation of the Debt Financing from by Surviving Corporation and its Subsidiaries immediately following the same and/or alternative financing sources so long as the aggregate amount Effective Time; provided that none of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient Company or any of its Subsidiaries shall be required to pay all amounts required to be paid any commitment or other similar fee or incur any other cost or expense that is not simultaneously reimbursed by Parent in connection with the transactions contemplated Debt Financing prior to the Effective Time. Parent shall, promptly upon request by this Agreement the Company, reimburse the Company for all reasonable documented out of pocket costs and expenses incurred by the Company or its Subsidiaries in connection with such cooperation and shall indemnify and hold harmless the Company, its Subsidiaries and their respective Representatives from and against any and all conditions precedent to funding liabilities, losses, damages, claims, expenses, interest, judgments and penalties suffered or incurred by them in connection with the arrangement of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing and any information utilized in connection therewith (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in other than information provided by the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, Company or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full Subsidiaries in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiiterms hereof).
(fc) Notwithstanding anything For purposes of this Agreement, “Marketing Period” shall mean the first period of 20 consecutive days after the Initiation Date (A) throughout and on the last day of which (1) Parent and its Financing sources shall have the Required Information and (2) nothing has occurred and no condition exists that would cause any of the conditions set forth in clauses (c) and (d) of Annex A to fail to be satisfied assuming such conditions were applicable any time during such 20-consecutive-day period, and (B) throughout and on the last day of which the conditions set forth in Section 7.1 shall be satisfied; provided that (w) the Marketing Period shall end on any earlier date that is the date on which the Debt Financing to be drawn on the Closing Date is consummated; (x) the Marketing Period occurs either entirely before or entirely after the period from August 17 through September 3, 2007; (y) the Marketing Period shall not be deemed to have commenced if, prior to the contrary completion of the Marketing Period, (A) Ernst & Young LLP shall have withdrawn its audit opinion with respect to any financial statements contained hereinin the Required Financial Information, in which case the Marketing Period will not be deemed to commence at the earliest unless and until a new unqualified audit opinion is issued with respect to the consolidated financial statements for the applicable periods by Ernst & Young LLP or another independent registered accounting firm reasonably acceptable to Parent’s obligations hereunder are not subject , (B) the Company shall have announced any intention to a condition regarding Parent’s or restate any of its Affiliates’ obtaining funds financial information included in the Required Information or that any such restatement is under consideration or may be a possibility, in which case the Marketing Period will not be deemed to consummate commence at the Merger earliest unless and until such restatement has been completed and the transactions contemplated Company’s SEC Reports have been amended or the Company has announced that it has concluded that no restatement shall be required in accordance with GAAP, (C) the Company shall have been delinquent in filing any report with the SEC, in which case the Marketing Period will not be deemed to commence at the earliest unless and until all such delinquencies have been cured or (D) if the Company has received any material accounting comments from the staff of the SEC on its Annual Reports on Form 10-K or Quarterly Reports on Form 10-Q, as such may be amended, the Marketing Period will be deemed not to commence at the earliest unless and until all such material accounting comments have been satisfactorily resolved with the SEC staff; and (z) if the financial statements included in the Required Information that is available to Parent on the first day of any such 20-consecutive-day period would not be sufficiently current on any day during such 20-consecutive-day period to permit (i) a registration statement using such financial statements to be declared effective by this Agreementthe SEC on the last day of the 20-consecutive-day period or (ii) the Company’s independent registered accounting firm to issue a customary comfort letter to purchasers (in accordance with its normal practices and procedures) on the last day of the 20-consecutive-day period, then a new 20-consecutive-day period shall commence upon Parent receiving updated Required Information that would be sufficiently current to permit the actions described in (i) and (ii) on the last day of such 20-consecutive-day period.
Appears in 1 contract
Samples: Merger Agreement (Biomet Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange consummate and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to by the terms thereof (including any “market flex” provisions) Closing, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided and comply in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply material respects with its obligations under the Debt Commitment Letter, and (Eii) to consummate the Debt Financing at or prior satisfy on a timely basis all conditions to the Effective Time. In funding of the event that all conditions precedent expressly Financing set forth in the Debt Commitment Letter have been or, upon funding of or the Debt Financing will be, satisfied, Parent definitive financing agreements and Sub shall use their reasonable best efforts to enforce their rights under, (iii) negotiate and cause enter into definitive agreements with respect thereto on the Financing Sources, lenders terms and the other persons providing or committing to provide the Debt Financing to comply with their obligations under conditions contemplated by the Debt Commitment Letter (including after giving effect to any “market flex” provisions in connection with the Financing) or, if available, on other terms that are acceptable to Parent and definitive financing agreements would not adversely affect in any material respect (including with respect to timing and conditionality) the ability of Parent, OpCo and Merger Sub to fund on or before consummate the Effective Time transactions contemplated herein (the “Debt FinancingFinancing Agreements”). Parent shall keep the Company informed on a current regular basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) . Without limiting the effect of the foregoing, Parent agrees to notify shall give the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date prompt notice of (i) any material breach or default by any other party to the Debt Commitment Letter is terminated for any reasonor the Debt Financing Agreements of which Parent becomes aware, (ii) Parent becomes aware the receipt of any breach written notice or default (A) other written communication with respect to any actual or potential breach, default, termination or repudiation by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party provision thereof or any material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Debt Financing Agreement ifwith respect to the obligations to fund the Financing or the amount of the Financing to be funded at the Closing, in and (iii) the case of this clause (B), such breach expiration or default would reasonably be expected to affect the availability termination for any reason of the Debt Financing Commitment Letter or (iii) a counterparty indicates in writing the commitments thereunder or orally that it will not provide, or it refuses to provide, if for any reason all or any portion of the Debt Financing contemplated by becomes unavailable.
(b) Parent shall not, and shall not permit OpCo or Merger Sub to, agree to or permit any termination, amendment, replacement, supplement or other modification of, or waive any of its material rights under, the Debt Commitment Letter on or the terms set forth therein. Parent Debt Financing Agreements without the Company’s prior written consent (which consent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(cnot be unreasonably withheld, conditioned or delayed). Parent shall not; provided that Parent, nor shall it permit any of its Affiliates toOpCo and Merger Sub may, without the Company’s prior written consent of the Company, take any action or (i) enter into any transaction amendment, replacement, supplement or other modification to or waiver of any provision of the Debt Commitment Letter or the Debt Financing Agreements that does not (w) reduce the aggregate amount of net cash proceeds from the Financing below the amounts otherwise required to be paid by Parent, OpCo or Merger Sub hereunder in cash, (x) impose new or additional conditions to the funding of the financing, (y) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Debt Financing Agreements or (z) otherwise contain any provisions that would reasonably be expected to prevent, materially impair, delay or prevent materially impede the consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause Transactions; and (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.amend the
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Dorado shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and consummate the financing necessary for the Funds (the “Financing”) on the terms and conditions described in the Commitment Letter, including using its reasonable best efforts to (i) satisfy on a timely basis all terms, covenants and conditions set forth in the Commitment Letter; (ii) enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Letter; (iii) enforce its rights under the Commitment Letter; and (iv) consummate the Financing on or prior to the Outside Date. Dorado will furnish correct and complete copies of all such definitive agreements to Redfish promptly upon their execution.
(b) Dorado shall keep Redfish informed with respect to all material activity concerning the status of the Financing contemplated by the Commitment Letter and shall give Redfish prompt notice of any material adverse change with respect to such Financing. Without limiting the generality of the foregoing, Dorado agrees to notify Redfish promptly, and in any event within two business days, if at any time (i) the Commitment Letter shall expire or be terminated, rescinded or withdrawn for any reason, (ii) any financing source that is a party to the Commitment Letter notifies Dorado that such source no longer intends to provide financing to Dorado on the terms set forth therein or (iii) for any reason Dorado no longer believes in good faith that it will be able to obtain all or any portion of the Debt Funds on the terms set forth in the Commitment Letter. Dorado shall not, and shall not permit any of its affiliates to, without the prior written consent of Redfish, take or fail to take any action or enter into any transaction, including any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing, that could reasonably be expected to breach or make untrue any representation or warranty contained in the Commitment Letter or otherwise impair, delay or prevent consummation of the Financing contemplated by the Commitment Letter. Dorado shall not amend or alter, or agree to amend or alter, the Commitment Letter in any manner that would prevent, impair or delay the consummation of transactions contemplated by this Agreement without the prior written consent of Redfish.
(c) If any portion of the Funds becomes unavailable or the Commitment Letter therefor shall be terminated, rescinded, withdrawn or modified in a manner materially adverse to Dorado for any reason, Dorado shall use its reasonable best efforts to arrange to obtain alternative financing for the Funds from alternative sources (“Alternate Financing”) and to obtain, and, if obtained, will provide Redfish a copy of, a new financing commitment that provides for at least the amount of the Funds on terms and conditions (including termination rights and funding conditions) no less favorable to Dorado, in the aggregate, than those included in such prior commitment letter (“New Commitment Letter”). To the extent applicable, Dorado shall use its reasonable best efforts to take, or cause to be taken, all action necessary, proper or advisable to arrange promptly and consummate the Alternate Financing on the terms and conditions described in any New Commitment Letter, including compliance with the Debt Commitment Letter pursuant to the terms thereof provisions of paragraphs (including any “market flex” provisionsa) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in of this Section 6.13)6.11, (Bwhich shall apply to any New Commitment Letter. Redfish acknowledges that Dorado’s compliance with the provisions of this Section 6.11(c) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Alternate Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability constitute a breach of the parties to consummate the Merger, all conditions to receipt representations and warranties of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth Dorado in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing4.9.
(d) Parent Dorado shall have publicly announce, not later than the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment LetterDetermination Date, (wi) whether or not it has entered into binding definitive agreements for the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (zii) trueif it has entered into such agreements, correct and complete copies of each material amendment whether or modification not all conditions to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant lenders to Section 6.14 shall no longer be in effect. Further, Parent consummate the Financing under such definitive agreements on the Closing Date shall have the right to substitute commitments in respect of other financings for all been satisfied or any portion waived as of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding date of such financing are, in respect of certainty of funding, equivalent to announcement (or more favorable to the Company than) the excluding for this purpose any conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with that by their nature can be satisfied only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to of consummation of the extent then in effectFinancing, and (iii) any reference in this Agreement to “fee letter” shall provided that such excluded conditions would be deemed to include any fee letter relating to satisfied or capable of satisfaction if the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at date of such consummation were the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment date of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiisuch announcement).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject Parent shall obtain the Equity Financing contemplated by the Equity Commitment Letters upon satisfaction or waiver of the conditions to the terms and conditions Closing set forth in Section 9.1 [(Conditions to the Obligations of this Agreementthe Company, Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange Merger Sub)] and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant Section 9.2 [(Conditions to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under Obligations of the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunderCompany)]. Parent shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Equity Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces Letters without the aggregate amount prior written consent of the cash proceeds from Company. Parent acknowledges and agrees that its obligations to consummate the Debt Financing transactions contemplated by this Agreement are not conditioned or (B) imposes new or additional conditions to the initial funding in any way contingent upon or otherwise expands any of the conditions to the subject to, receipt of the Debt FinancingEquity Financing or other financing or the availability, grant, provision or otherwise expands, amends extension of any Equity Financing or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability financing of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Affiliates. Neither Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall notnor Merger Sub shall, nor shall it they permit any of its their Affiliates to, without the prior written consent of the Company, take or fail to take any action or enter into any transaction that would could reasonably be expected to materially impair, delay or prevent the consummation of the Equity Financing contemplated by the Equity Commitment Letters.
(b) Prior to the earlier of the Closing or termination of this Agreement in accordance with Section 10.1 [(Termination)], the Company agrees to use commercially reasonable efforts to provide such cooperation as may be reasonably requested by Parent, at Parent’s expense and solely as an accommodation to Parent, in connection with the arrangement of any financing to be consummated with respect to the transactions contemplated by this Agreement; provided that (i) such requested cooperation does not (A) unreasonable interfere with the ongoing operations of the Company, the MIC Hawaii Companies and their respective Affiliates, (B) cause any representation, warranty covenant or agreement in this Agreement to be breached; or (C) cause any closing condition set forth in Article VIII to fail to be satisfied or otherwise causes the breach of this Agreement or any Contract to which MIC or any of the MIC Subsidiaries or the Company or any of the MIC Hawaii Companies is a party; and, provided, further, that the effect of any such breach shall be excluded when determining if the conditions set forth in Section 9.1 [(Conditions to the Obligations of the Company, Parent and Merger Sub)] and Section 9.2 [(Conditions to the Obligations of the Company)] are satisfied, (ii) this Section 8.17(b) does not expand any of Parent’s rights under Section 8.1 [(Access to Information Concerning Properties and Records)] and (iii) none of the Company, the MIC Hawaii Companies and their respective Affiliates shall have any liability or obligation under any agreement or document related to such financing or otherwise be required to incur any liability or obligation in connection with such financing.
(c) For the avoidance of doubt, none of MIC, the MIC Subsidiaries, the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to provide, and Parent shall be solely responsible for, (1) the preparation of pro forma financial information, including pro forma cost savings, synergies, capitalization or other pro forma adjustments desired to be incorporated into any pro forma financial information or any financial statements or financial information other than the consolidated financial statements contained in the MIC Reports or Company Reports, (2) any description of all or any portion component of the Debt Financingfinancing, including any such description to be included in any liquidity or capital resources disclosure or any “description of notes”, (3) projections, risk factors or other forward-looking statements relating to all or any component of any financing, (4) subsidiary financial statements or any other information of the type required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X promulgated under the Exchange Act or (5) Compensation Disclosure and Analysis required by Item 402(b) of Regulation S-K promulgated under the Exchange Act. The MIC Board, the Company Board and the directors, managers and general partners of the MIC Subsidiaries and the MIC Hawaii Companies and any other Affiliates of the Company or MIC shall not be required to adopt resolutions approving the agreements, documents and instruments pursuant to which any financing is obtained. None of the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to execute prior to the Closing any definitive financing documents, including any credit or other agreements, pledge or security documents, or other certificates, legal opinions or documents in connection with the financing, and in the event any such Person does agree to execute any such document, Parent agrees that the execution of any documents in connection with the financing shall be subject to the consummation of the transactions contemplated hereby at the Closing and such documents will not take effect until the Closing occurs and will not encumber the assets of the Company or any MIC Hawaii Company prior to the Closing. Except as expressly provided above, none of the Company, any MIC Hawaii Companies or their respective Affiliates shall be required to take any corporate, limited liability company or limited partnership actions prior to the Closing to permit the consummation of the financing. In no event shall the Company or MIC be in breach of this Agreement because of the failure to deliver any financial or other information or for the failure to obtain any comfort with respect to, or review of, any financial or other information by its accountants.
(d) In no event shall MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company be required to (i) pay any commitment or similar fee or incur any liability (including due to any act or omission by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company or any of their respective Representatives) or expense in connection with assisting Parent shall have in arranging the right financing or as a result of any information provided by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company or any of their respective Affiliates or their respective Representatives in connection therewith, (ii) take any action that would result in a violation of applicable Law or subject it to substitute the net cash proceeds received by Parent after the date hereof and actual or potential liability prior to the Closing from consummated offerings occurring, (iii) have any liability or any obligation under any definitive financing document or any related document or other incurrences agreement or document related to the financing prior to the Closing occurring, or (iv) disclose or provide any information the disclosure of debt which in the reasonable judgment of MIC or any of the MIC Subsidiaries (including notesor, following completion of the Reorganization, the Company or any of the MIC Hawaii Companies), is restricted by applicable Law or order, or is subject to attorney-client privilege. Notwithstanding anything to the contrary herein, any breach by MIC, any MIC Subsidiary, the Company or any MIC Hawaii Company of their obligations under this Section 8.17 shall not constitute a breach of this Agreement or a breach for purposes of Article IX or a breach of any condition precedent set forth in Article VIII.
(e) by Parent shall be responsible for all or fees and expenses related to any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required financing to be paid consummated in connection with the transactions contemplated by this Agreement. Accordingly, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent shall promptly notifies reimburse MIC and the Company of for all reasonable and documented out-of-pocket costs incurred by MIC and the MIC Subsidiaries and the Company and the Company Subsidiaries in connection with such substitution cooperation. Parent shall indemnify and reduction and (z) truehold harmless MIC, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to MIC Subsidiaries, the Company. If commitments under , the Debt Commitment Letter have been reduced to zero Company Subsidiaries and their respective Affiliates and Representatives from and against any and all Liabilities, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the preceding sentence, the obligations arrangement of any financing or providing any of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid information utilized in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effecttherewith.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Purchaser shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Letter, and shall not, not permit without the Company’s prior written consentconsent of the Seller, permit which consent shall not be unreasonably withheld or delayed, any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (Ai) reduces (or could have the effect of reducing) the aggregate amount of the cash proceeds from Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless (A) the Debt Financing is increased by a corresponding amount and (B) after giving effect to any of the transactions referred to in clause (A) above, the representation and warranty set forth in Section 6.06 shall be true) or (Bii) imposes new or additional conditions to the initial funding or otherwise expands expands, amends or modifies any of the conditions to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (xA) prevent or make less likely or materially delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the date of the Closing Date, or (yB) adversely affect impact the ability of Parent Purchaser to enforce its rights against other parties to the Debt Commitment Letter or (provided that, subject to compliance with the definitive agreements with respect thereto (providedother provisions of this Section 7.05, that Parent Purchaser may amend the Debt Commitment Letter to add or replace additional lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closingbookrunners and agents). Parent Purchaser shall promptly deliver to the Company true, complete and correct Seller copies of any such amendment, modification or replacement.
(b) Parent shall, and Purchaser shall cause its Affiliates and Representatives to, use its reasonable best efforts to (Ai) to maintain in full force and effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)Letter, (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and conditions that are not materially contemplated by the Debt Commitment Letter or on other terms no less favorable to Parent than those contained in Seller (including with respect to the conditionality thereof), (iii) comply with its obligations under the Debt Commitment LetterLetter and the definitive agreements with respect thereto, and (Civ) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth funding in the Debt Commitment Letter, Letter and such definitive agreements thereto and to consummate the Debt Financing at or prior to the ClosingClosing Date, (D) to comply with including using its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts (including through litigation pursued in good faith) to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide fund the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to at the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that and (v) such offering or other incurrence of debt does not result in a breach or default underto enforce its rights (including, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the with respect to Debt Financing committed under the Debt Commitment Letter following such reductionsources, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid through litigation pursued in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.good
Appears in 1 contract
Samples: Stock Purchase Agreement (Catalent Pharma Solutions, Inc.)
Financing. (a) Subject Parent acknowledges and agrees that the Company (prior to the terms Effective Time) and conditions its affiliates and their respective directors, officers, employees, agents and Representatives shall not have any responsibility for, or incur any liability to any person under, any financing that Parent may raise in connection with the transactions contemplated by this Agreement or any cooperation provided pursuant to this Section 6.11 and that Parent and Acquisition Sub shall indemnify and hold harmless the Company and its affiliates and their respective directors, officers, employees, agents and Representatives from and against any and all losses, damages, claims, costs or expenses suffered or incurred by any of this Agreementthem in connection with the Financing and any information utilized in connection therewith (other than information provided in writing specifically for such use by or on behalf of the Company or any of its affiliates).
(b) Each of Parent and Acquisition Sub shall use, Parent and shall use its cause their affiliates to use, their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to (i) arrange and obtain the Debt proceeds of the Financing on the terms and conditions described in the Debt Commitment Letter pursuant Financing Commitments, (ii) enter into definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments or on other terms and conditions not in violation of this Section 6.11 and (iii) satisfy on a timely basis all conditions applicable to Parent, Acquisition Sub or their affiliates in such definitive agreements. Anything in this Agreement to the terms thereof (contrary notwithstanding, Parent and Acquisition Sub shall be permitted to amend, modify or supplement the Financing Commitments or replace any portion of the Financing Commitments with new financing commitments, including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof through co-investment or by the financing provider(s) thereunder. from one or more additional parties, provided that Parent and Acquisition Sub shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement supplement or modification to be made to, or any waiver of any provision or remedy under, or replacement of, the Debt Commitment Letter Financing Commitments, if such replacement (including through co-investment by or financing by one or more additional parties), amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) prevent, delay or prevent impede in any material respect the funding in full ability of Parent and Acquisition Sub to consummate the Offer and the Merger or the likelihood of consummation thereof or is adverse to the interests of the Company prior to the Closing in any other material respect; and in any event, Parent shall disclose to the Company promptly its intention to amend, modify, supplement or replace any portion of the Financing Commitments and shall keep the Company reasonably promptly informed of the terms thereof, including providing the most recent drafts of commitment letters containing any material new or modified term as of and no later than two (2) Business Days prior to any scheduled expiration of the Offer.
(c) Parent and Acquisition Sub shall use their respective reasonable best efforts to cause the lenders that are party to the Debt Commitment Letters and any other persons providing Financing to fund at or immediately after the Effective Time the Financing required to consummate the Offer and the Merger and the other transactions contemplated by this Agreement and the Financing Commitments, if all conditions to the Financing are satisfied or waived (or satisfaction of will be satisfied or waived upon funding) and all the conditions to the Debt Financing) on Offer in Annex I are satisfied or waived. For the Closing Dateavoidance of doubt, or Parent shall make all funds available to Acquisition Sub as are required for it to perform its obligations hereunder (y) adversely affect the ability of Parent to enforce its rights against other parties including with respect to the Debt Commitment Letter consummation of the Offer and the payment for shares tendered thereby).
(d) In the event that any portion of the Financing becomes or could become unavailable in the manner or from the sources contemplated in the Financing Commitments, (A) Parent shall promptly so notify the Company and (B) Parent and Acquisition Sub shall use their respective reasonable best efforts to arrange to obtain any such portion (or any lesser portion that is sufficient to consummate the Offer and the Merger) from alternative sources on terms and conditions not less beneficial to Parent and Acquisition Sub than the terms and conditions in the Financing Commitments, and with such other terms and conditions as would be in compliance with the last sentence of Section 6.11(b), as promptly as practicable following the occurrence of such event, including by entering into definitive agreements with respect thereto (provided, that Parent may amend such definitive agreements entered into pursuant to the Debt Commitment Letter first sentence of this Section 6.11(d) or Section 6.11(b)(ii) being referred to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing“Financing Agreements”). Parent and Acquisition Sub shall, shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shallcause their affiliates to, and shall use their respective reasonable best efforts to cause its Affiliates and their Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amendedcomply with their obligations, supplemented, replaced, modified or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), conditions to consummating the Offer and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt under the Financing Agreements and any related fee and engagement letters.
(e) Parent shall (x) furnish the Company complete, correct and executed copies of the full amount Financing Agreements promptly upon their execution, (y) give the Company prompt notice of any material breach or threatened breach by any party of any of the Debt Financing at Commitments, any alternative financing commitment or the Closing set forth therein that are within its control Financing Agreements of which Parent or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at Acquisition Sub becomes aware or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, any termination or threatened termination thereof and (Ez) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall otherwise keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iiireplacement thereof).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Financing. (a) Subject to During the terms and conditions period commencing on the date of this AgreementAgreement and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to Article VIII, Parent shall not without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or delayed) permit any amendment, supplement, replacement or other modification to be made to, or any consent or waiver of any provision or remedy pursuant to, the Commitment Letter if such amendment, supplement, replacement, modification, condition or waiver would, or would reasonably be expected to, (i) reduce the aggregate amount of the Financing from that contemplated in the Commitment Letter; (ii) impose new or additional conditions or other terms or otherwise expand, amend or modify any of the conditions to the receipt of the Financing as set forth in the Commitment Letter or any other terms to the Financing as set forth in the Commitment Letter in a manner that would reasonably be expected to (A) materially delay, impede or prevent the consummation of the transactions contemplated by this Agreement; (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing, less likely to occur in any respect; or (C) adversely impact the ability of Parent or the Company to enforce its rights against the Financing Sources under the Commitment Letter or the definitive agreements with respect thereto; provided however, for the avoidance of doubt, Parent may (x) amend, supplement and/or modify the Commitment Letter solely to add lenders, syndication agents or similar entities as parties thereto who had not executed the Commitment Letter as of the date hereof and (y) correct non-substantive typographical errors, in each case, so long as the commitments of the Financing Sources are not reduced. Parent shall furnish to the Company a copy of any amendment, restatement, replacement, supplement, modification, waiver or consent of or relating to the Commitment Letter promptly upon execution thereof. Parent shall not release or consent to the termination of the Commitment Letter or the termination or reduction of any commitments provided thereunder.
(b) During the period commencing on the date hereof and terminating on the earlier to occur of the Closing and the termination of this Agreement pursuant to and in accordance with Article VIII, Parent will use its reasonable best efforts to take, take or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper and advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letter, including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s(i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter in accordance with its terms and subject to the conditions thereof (provided that subject to Parent’s right to replace, restate, supplement, modify, assign, substitute or amend the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in accordance with this Section 6.136.15), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, thereof) all conditions to receipt of funding that are to be satisfied by Parent in the full amount of Commitment Letter; (iii) in the Debt Financing event that all conditions in the Commitment Letter (other than conditions that by their nature are to be satisfied at the Closing set forth therein Closing) have been satisfied (other than those conditions that are within its control would be expected to be satisfied substantially concurrently with the Closing) consummate or subject cause to its influence and, upon satisfaction of be consummated the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, ; (Div) to comply with its obligations under pursuant to the Debt Commitment Letter; and (v) enforce its rights pursuant to the Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause including seeking specific performance against the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. .
(c) Parent shall (i) keep the Company fully informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, and (ii) promptly following request by the Company, provide to the Company with copies of all executed Debt Financing Agreements.
(c) definitive agreements related to the Financing. Without limiting the generality of the foregoing, Parent agrees to notify shall give the Company promptly, and prompt written notice (but in any event within not later than two (2Business Days after the occurrence or discovery thereof) Business Days, if at any time prior to the Closing Date (i) of any breach (or threatened breach), default (or any event or circumstance that, with notice or lapse or time or both, could reasonably be expected to give rise to any breach or default), termination or repudiation by any party to the Debt Commitment Letter is terminated for any reasonor definitive agreements related to the Financing of which Parent becomes aware, (ii) of the receipt by Parent becomes aware of any notice or other communication from any Person with respect to any (A) actual or potential breach, default (or any event or circumstance that, with notice or lapse or time or both, could reasonably be expected to give rise to any breach or default (A) default), termination or repudiation by any Financing Source party to the Debt Commitment Letter Letter, of any provisions thereof or of any Debt definitive agreements related to the Financing Agreement or (B) material dispute or disagreement between or among Parent on the one hand, and any of the Financing Sources on the other party to the Debt Commitment Letter or any Debt Financing Agreement ifhand, in the case of this clause (B), such breach or default would that could reasonably be expected to affect result in an actual or threatened breach, default, termination or repudiation by any party to the availability of the Debt Financing Commitment Letter, or any provision thereof, or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide occurrence of any information event or development that is reasonably requested by the Company relating likely to any circumstances referred to in this Section 6.13(c). Parent shall notprevent, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation materially impede the timely funding of all or any portion of the Debt Financing or the satisfaction of the conditions to obtaining the Financing materially less likely to occur. Upon the reasonable request of the Company, Parent shall provide the Company information in reasonable detail about the status of its efforts to arrange the Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof expressly acknowledges and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default underagrees that, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference notwithstanding anything in this Agreement to the “Debt Financing” shall include contrary, its obligations hereunder, including its obligation to consummate the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) belowClosing, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s to, or conditioned on, receipt of the Financing or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreementother financing.
Appears in 1 contract
Samples: Merger Agreement (Telenav, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, Parent Buyer shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant Financing Commitments and Buyer shall not agree to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent shall not, without the Company’s prior written consent, or permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Financing Commitments without the prior written consent of the Seller, if such amendment, supplement, replacement, modification or waiver would (Ax) reduces reduce the aggregate amount of the cash proceeds from the Debt Financing below the amount required to consummate the transactions contemplated hereby, unless such reduction constitutes a Permitted Commitment Reduction or (By) imposes impose new or additional conditions to the initial funding or otherwise expands amend, modify or expand any of the conditions precedent to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing in a manner that would reasonably be expected to (xi) delay or prevent the Closing, (ii) make the funding in full of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) on the Closing Date, less likely to occur or (yiii) adversely affect impact the ability of Parent Buyer to enforce its rights against the other parties to the Debt Commitment Letter Financing Commitments or the definitive agreements with respect thereto thereto, the ability of Buyer to consummate the purchase of the Shares or the likelihood of consummation of the purchase of the Shares (provided, however, that Parent Buyer may replace or amend the Debt Commitment Letter Financing Commitments (A) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date of this Agreement, in each case in accordance with the Debt Financing Commitments as of the date hereof so long as the addition of such action would parties could not reasonably be expected to delay or prevent have any of the Closing). Parent shall promptly deliver to the Company true, complete and correct copies of any such amendment, modification or replacement.
effects described in clauses (bi) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts through (Aiii) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13)above, (B) to negotiate correct typographical errors and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection accordance with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceabilitythereof. Upon any such amendment, availability replacement, supplement or conditionality of, or the aggregate amount modification of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full Commitments in accordance with this Section 7.12(a), the Company Credit AgreementBuyer shall provide, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained hereinwithin two days, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.an executed copy
Appears in 1 contract
Financing. (a) Subject to the terms (i) Each of Parent and conditions of this Agreement, Parent Co-Borrower shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, advisable or proper to arrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(s) thereunder. Parent Financing Letters, and shall not, without the Company’s prior written consent, not permit any amendment, supplement, replacement amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter Financing Letters if such amendment, supplement, replacement, modification or waiver (A) with respect to the Financing Letters, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the cash proceeds from Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Debt Financing or the Equity Financing is increased by a corresponding amount or the Debt Financing is otherwise made available to fund such fees or original issue discount and (y) after giving effect to any of the transactions referred to in clause “(x)” above, the representation and warranty set forth in Section 4.10 shall be true and correct) or (B) imposes new or additional conditions to the initial funding precedent or otherwise expands expands, amends or modifies any of the conditions precedent to the receipt of the Debt Financing, Financing or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter Financing Letters, in a manner that would reasonably be expected to (x) delay or prevent or make less likely the funding in full of the Debt Financing (or satisfaction of the conditions precedent to the Debt Financing) on at the Closing DateAcceptance Time or the Effective Time, as applicable, or (y) adversely affect impacts the ability of Parent or Co-Borrower or the Company, as applicable, to enforce its rights against other parties to the Debt Commitment Letter Financing Letters or the definitive agreements with respect thereto (providedprovided that, that subject to compliance with the other provisions of this Section 6.11(a), Parent and Co-Borrower may amend the Debt Commitment Letter to add or replace additional lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closingbookrunners and agents). Parent shall promptly deliver to the Company trueCompany, complete and correct at least three (3) business days prior to the proposed execution thereof, copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in . For purposes of this Section 6.13)6.11, (B) references to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement if, in the case of this clause (B), such breach or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter Financing Letters as permitted to be amended or modified pursuant by this Section 6.11(a) and references to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall include such documents as permitted to be deemed to include the Debt Commitment Letter which is not superseded amended or modified by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii6.11(a).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Greenway Medical Technologies Inc)
Financing. (a) Subject to the terms Buyer and conditions of this Agreement, Parent Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, on a timely basis, all things necessary, proper or advisable or proper to arrange and obtain the Debt Financing on the terms and conditions described in the Debt Financing Letters and the Company Equity Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) including using its reasonable best efforts to seek (i) satisfy on a timely basis all conditions and contingencies applicable to enforce its rights under Buyer and Acquisition Sub (or their affiliates) and within their control in obtaining the Financing set forth therein, (ii) maintain in effect the Financing Letters except in connection with entering into definitive documentation with respect to the Financing, which definitive documentation shall replace the Financing Letters on the terms set forth therein, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Financing Letters or on other terms in the aggregate not materially less favorable to Buyer, (iv) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or marketing materials with respect to the Financing, (v) commence the syndication activities contemplated by the Debt Commitment Financing Letter and (vi) consummate the financing pursuant to the Financing Letters and, to the extent contemplated by the Company Equity Commitment, the Company Investment, at or prior to Closing. Buyer shall give the Company prompt written notice (A) of any breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in breach or default) by any party to any Financing Letter or other Debt Document of which Buyer or Acquisition Sub becomes aware, (B) if and when Buyer or Acquisition Sub becomes aware that any portion of the Financing contemplated by any Financing Letter may not be available to consummate the Merger, (C) of the receipt of any written notice or other written communication from any Person with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any Debt Document or (2) material dispute or disagreement between or among any parties to any Financing Letter or other Debt Document (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or Debt Documents), and (D) of any termination of any Financing Letter (other than in connection with entering into definitive documentation for the Financing, which definitive documentation shall replace the Financing Letters on the terms set forth therein). Without limiting the foregoing, Buyer and Acquisition Sub shall keep the Company informed on a reasonably current basis in reasonable detail of the status of their efforts to arrange the Financing and provide to the Company copies of executed copies of the definitive documents related to the Financing (excluding any unredacted fee letters, engagement letters or other agreements that, in accordance with customary practice, are confidential by their terms) and copies of any of the written notices or communications described in the event of a breach thereof by preceding sentence. Buyer and Acquisition Sub shall (1) comply in all material respects with each Financing Letter and each definitive agreement with respect thereto (to the financing provider(sextent related to the Debt Financing, collectively, the “Debt Documents”), and (2) thereunder. Parent shall notnot permit, without the Company’s prior written consentconsent of the Company, permit any amendment, supplement, replacement material amendment or modification to be made to, or any material waiver of any provision or remedy under, the any Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter Document or the definitive agreements with respect thereto Fee Letters (provided, except that Parent may amend the Debt Commitment Letter to add or replace addition of lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably shall be expected to delay or prevent the Closingpermitted). Parent shall promptly deliver to the Company true, complete and correct copies of including any such amendment, modification or replacement.
waiver that (b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Commitment Letter (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified individually or waived as provided in this Section 6.13), (B) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) on the terms and conditions that are not materially less favorable to Parent than those contained in the Debt Commitment Letter, (C) to satisfy on a timely basis (or obtain the waiver of), and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, (D) to comply aggregate with its obligations under the Debt Commitment Letter, and (E) to consummate the Debt Financing at or prior to the Effective Time. In the event that all conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding of the Debt Financing will be, satisfied, Parent and Sub shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financing. Parent shall keep the Company informed on a current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements.
(c) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter amendments, modifications or any Debt Financing Agreement if, in the case of this clause (B), such breach or default waivers) would reasonably be expected to affect reduce the availability aggregate amount of the Financing under any Debt Financing Document (including by changing the amount of fees to be paid or (iiioriginal issue discount thereof) a counterparty indicates in writing below the amount required to consummate the transactions contemplated by this Agreement. Buyer shall have the right from time to time to amend, replace, supplement or orally that it will not provideotherwise modify, or it refuses to providewaive any of its rights under, the Financing Letters and the binding agreements with respect thereto, or substitute other debt or equity financing for all or any portion of the Debt Financing contemplated by from the Debt Commitment Letter on same or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to, or waiver of, any provision of the terms set forth therein. Parent shall promptly provide Financing Letters that amends the Financing or substitution of all or any information reasonably requested by portion of the Company relating to any circumstances referred to in this Section 6.13(c). Parent Financing shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the CompanyCompany (such consent not to be unreasonably withheld, take any action conditioned or enter into any transaction that would reasonably be expected to materially impairdelayed) (A) prevent, impede or delay or prevent the consummation of all or any portion of the Debt Financing.
(d) Parent shall have Merger and the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (xB) adversely impact the proceeds ability of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies Buyer to enforce its rights against the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification counterparties to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentenceFinancing Letters, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Further, Parent shall have the right to substitute commitments in respect of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as (C) reduce the aggregate amount of Financing below the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts amount required to be paid in connection with the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as modified pursuant to clause (ii) below, (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.. Buyer and Acquisition Sub shall provide notice to the Company promptly upon receiving the
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable or proper to arrange arrange, obtain and obtain consummate the Debt proceeds of the Financing as soon as practicable, and in any event no later than the Closing, on the terms and conditions described in the Debt Equity Commitment Letter pursuant to the terms thereof (including any “market flex” provisions) Letters, including using (and causing its Subsidiaries to use) their respective reasonable best efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a breach thereof by the financing provider(sto: (i) thereunder. Parent shall not, without the Company’s prior written consent, permit any amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter if such amendment, supplement, replacement, modification or waiver (A) reduces the aggregate amount of the cash proceeds from the Debt Financing or (B) imposes new or additional conditions to the initial funding or otherwise expands any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter in a manner that would reasonably be expected to (x) delay or prevent the funding comply with and maintain in full of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date, or (y) adversely affect the ability of Parent to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect thereto (provided, that Parent may amend the Debt Commitment Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities so long as such action would not reasonably be expected to delay or prevent the Closing). Parent shall promptly deliver to the Company true, complete force and correct copies of any such amendment, modification or replacement.
(b) Parent shall, and shall cause its Affiliates and Representatives to, use its reasonable best efforts (A) to maintain in effect the Debt Equity Commitment Letter Letters in accordance with the terms and conditions thereof; (provided that the Debt Commitment Letter may be amended, supplemented, replaced, modified or waived as provided in this Section 6.13), (Bii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter (the “Debt Financing Agreements”) thereto on the terms and subject only to the conditions that are not materially less favorable to Parent than those contained in the Debt Equity Commitment LetterLetters and comply with and maintain in full force and effect the Equity Commitment Letters in accordance with the terms and subject only to the conditions thereof, so that the Equity Commitment Letters are in full force and effect as promptly as practicable after the Agreement Date, but in no event later than the Closing; and (Ciii) to satisfy on a timely basis (or obtain the waiver of), draw down upon and in a manner that will not impede the ability of the parties to consummate the Merger, all conditions to receipt of the full amount of the Debt Financing at the Closing set forth therein that are within its control or subject to its influence and, upon satisfaction of the conditions set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing.
(b) Neither Parent nor its Affiliates shall agree to any amendment, supplement or other modification to, obtain any replacement of, or grant any waivers of, any condition or other provision of any Equity Commitment Letter in a manner that is reasonably likely to materially delay or prevent the Closing without the prior written consent of the Company. Parent shall not permit, release or consent to the withdrawal, termination, repudiation or rescission of the Equity Commitment Letters or any definitive agreement with respect to the Financing and shall not permit, release or consent to the termination of the obligations of any party to the Equity Commitment Letters, in each case, without the prior written consent of the Company.
(Dc) In no event shall Parent or Merger Sub or any of their Affiliates (which for purposes of this Section 6.11(c) shall be deemed to comply include the parties to the Equity Commitment Letters and their Affiliates) prohibit or seek to prohibit any bank or investment bank or other potential provider of debt financing, from providing or seeking to provide financing or financial advisory services to any Person in connection with a transaction relating to the Company or its obligations under Subsidiaries or in connection with the Debt Commitment Letter, Merger or the other Transactions.
(d) Each of Parent and (E) Xxxxxx Sub acknowledges and agrees that neither the obtaining of the Financing nor the obtaining of any alternative financing is a condition to the Merger or the Closing and reaffirms its obligation to consummate the Debt Merger and the other Transactions irrespective and independently of the availability of the Financing at or prior any alternative financing, subject to the Effective Time. In the event that all applicable conditions precedent expressly set forth in the Debt Commitment Letter have been or, upon funding Section 7.01 and Section 7.02.
(e) Parent and Merger Sub acknowledge and agree that none of the Debt Financing will be, satisfied, Company or its Subsidiaries or their respective Affiliates or its and their Affiliates’ respective Representatives shall incur any liability to any Person under any financing that Parent and Merger Sub may raise in connection with the Transactions or any cooperation provided pursuant to this Section 6.11.
(f) Any breach of the Equity Commitment Letters by Parent shall use their reasonable best efforts to enforce their rights under, and cause the Financing Sources, lenders and the other persons providing or committing to provide the Debt Financing to comply with their obligations under the Debt Commitment Letter and definitive financing agreements and to fund on or before the Effective Time the Debt Financingbe deemed a breach by Parent of this Section 6.11. Parent shall keep (i) furnish the Company informed with complete, correct and executed copies of each amendment, waiver or other modification of the Equity Commitment Letters and any alternative financing agreement promptly upon their execution, (ii) give the Company prompt (but, in any event, within two (2) Business Days) written notice of any breach (or any event or circumstance that, with or without notice, lapse of time or both, could reasonably be expected to give rise to any breach or default) or threatened breach by any party to the Equity Commitment Letters or any alternative financing agreement of which Parent or Merger Sub becomes aware and any actual or threatened withdrawal, repudiation or termination thereof of which Parent or Merger Sub becomes aware and, in each case, any written notice or other communication with respect to any of the foregoing, (iii) give the Company prompt (but, in any event, within two (2) Business Days) written notice of each material dispute or disagreement between or among the parties to the Equity Commitment Letters, (iv) notify the Company if for any reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Financing contemplated by the Equity Commitment Letters, on a current basis the terms described therein and (v) upon reasonable request of the Company, promptly provide an update in reasonable detail of the status of its efforts to arrange the Debt Financing, and, promptly following request by the Company, provide to the Company copies of all executed Debt Financing Agreements(or any alternative financing).
(cg) Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two (2) Business Days, if at any time prior to the Closing Date (i) the Debt Commitment Letter is terminated for any reason, (ii) Parent becomes aware of any breach or default (A) by any Financing Source party to the Debt Commitment Letter or any Debt Financing Agreement or (B) any other party to the Debt Commitment Letter or any Debt Financing Agreement ifThe parties hereto acknowledge that, in the case of this clause (B)event that a Debt Document Waiver is withdrawn, such breach modified or default would reasonably be expected to affect the availability of the Debt Financing or (iii) a counterparty indicates in writing or orally that it will not provide, or it refuses to provide, all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms set forth therein. Parent shall promptly provide any information reasonably requested by the Company relating to any circumstances referred to in this Section 6.13(c). Parent shall not, nor shall it permit any of its Affiliates to, without the prior written consent of the Company, take any action or enter into any transaction that would reasonably be expected to materially impair, delay or prevent consummation of all or any portion of the Debt Financing.
(d) Parent shall have the right to substitute the net cash proceeds received by Parent after the date hereof and prior to the Closing from consummated offerings or other incurrences of debt (including notes) by Parent for all or any portion of the Debt Financing by reducing commitments under the Debt Commitment Letter; provided that (v) such offering or other incurrence of debt does not result in a breach or default under, or violation of, the Debt Commitment Letter, (w) the aggregate amount of the Debt Financing committed under the Debt Commitment Letter following such reduction, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with the transactions contemplated by this Agreement, (x) the proceeds of such debt offerings or other incurrences have been received by Parent in cash, (y) Parent promptly notifies the Company of such substitution and reduction and (z) true, correct and complete copies of each material amendment or modification to the Debt Commitment Letter relating thereto will be promptly provided to the Company. If commitments under the Debt Commitment Letter have been reduced to zero in connection with the preceding sentence, the obligations of the Company and its Subsidiaries pursuant to Section 6.14 shall no longer be in effect. Furtherterminated, Parent shall have may attempt to arrange third party debt financing for the right to substitute commitments in respect purpose of other financings for all or any portion of the Debt Financing from the same and/or alternative financing sources so long as the aggregate amount of the Debt Financing, together with other cash and cash equivalents available to Parent, is sufficient to pay all amounts required to be paid in connection with funding the transactions contemplated by this Agreement and all conditions precedent to funding of such financing are, in respect of certainty of funding, equivalent to (or more favorable to the Company than) the conditions precedent set forth in the Debt Commitment Letter, to supplement or replace the Debt Financing (“Alternative Debt Financing”). True, correct and complete copies of each alternative financing commitment in respect of such Alternative Debt Financing (each, a “New Debt Commitment Letter”), together with all related fee letters and associated engagement letters (solely in the case of the fee letter, with only the fee amounts, pricing, “market flex” provisions and other economic terms that do not adversely affect the enforceability, availability or conditionality of, or the aggregate amount of proceeds available under, the Debt Financing contained therein redacted), will be promptly provided to the Company. In the event any New Debt Commitment Letter is obtained, (i) any reference in this Agreement to the “Debt Financing” shall include the debt financing contemplated by ”) and, if Parent so chooses to seek the Debt Commitment Letter Financing, the Company shall use reasonable best efforts to provide, and shall use reasonable best efforts to cause its Subsidiaries and their respective Representatives to provide, such customary cooperation as modified pursuant to clause (ii) below, (ii) any reference is reasonably requested by Parent in this Agreement to the “Debt Commitment Letter” shall be deemed to include connection with the Debt Commitment Letter which is not superseded by a New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effect, and (iii) any reference in this Agreement to “fee letter” shall be deemed to include any fee letter relating to the Debt Commitment Letter that is not superseded by any New Debt Commitment Letter at the time in question and each New Debt Commitment Letter to the extent then in effectFinancing.
(e) On the Closing Date, Parent shall provide all funds required to effect the repayment of all indebtedness under the Company Credit Agreement in full in accordance with the Company Credit Agreement, subject to compliance with Section 6.14(a)(iii).
(f) Notwithstanding anything to the contrary contained herein, Parent’s obligations hereunder are not subject to a condition regarding Parent’s or any of its Affiliates’ obtaining funds to consummate the Merger and the transactions contemplated by this Agreement.
Appears in 1 contract