Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 4 contracts
Samples: Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Trimble Inc.), Sale and Contribution Agreement (Agco Corp /De)
Financing. (a) Subject to Concurrently with the terms execution and conditions delivery of this Agreement, AGCO shall use its reasonable best efforts Parent has delivered to obtain the Company a debt commitment letter from the lenders party thereto (the “Committed Lenders”) and the arrangers party thereto, dated as of the date hereof, addressed to Parent (including all annexes, exhibits, schedules and other attachments thereto, and as replaced, amended, supplemented, modified or waived after the date hereof in compliance with Section 6.09, the “Commitment Letter” and the financing contemplated thereby, the “Financing”), pursuant to which the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) Lenders have committed, on the terms and subject to the conditions set forth therein, to lend the amounts set forth therein for the purpose of funding the Transactions. As of the date hereof, the Commitment Letter has been accepted by Parent, is in full force and effect and has not been withdrawn or terminated or otherwise amended or modified in any respect; provided that the existence or exercise of “market flex” provisions contained in the Fee Letter (as defined below) shall not constitute an amendment or modification to the Commitment Letter. As of the date hereof, the Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto, and is enforceable against each party thereto in accordance with its terms, in each case except as limited by Laws affecting the enforcement of creditors’ rights generally or by general equitable principles. As of the date hereof, there are no other legally binding agreements, side letters or arrangements relating to the Financing (other than the Commitment Letter, the fee letter and fee credit letter relating to the Commitment Letter, true and complete copies of which have been provided to the Company, with only the existence and/or amount of fees, fee credits, “market flex” terms, pricing terms, pricing caps and other commercially sensitive information specified therein redacted, none of which redacted terms, individually or in the aggregate, would reduce the amount of the Financing below an amount necessary to make all payments required by this Agreement or adversely affect the conditionality, availability or termination of the Financing or materially delay or prevent the Closing or make the funding of the Financing less likely to occur (“Permissible Redacted Terms”) (such letters, the “Fee Letter”)) among the parties thereto. As of the date hereof, and (in the case of clause (ii) below) assuming the accuracy of the representations set forth in Article III, no event has occurred, and there is no condition or circumstance existing, which, with or without notice, lapse of time or both, would or would reasonably be likely to (i) constitute a default or breach on the part of Parent, Merger Sub or, to the Knowledge of Parent, any other party thereto, under the Commitment Letter or (ii) result in any portion of the Financing being unavailable on the Closing Date. As of the date hereof, there are no conditions precedent or other contingencies related to the funding of the full amount of the Financing (including any “market flex” provisions), other than as expressly set forth in the Commitment Letter (including any “flex” provisions in and the Fee Letter) . Parent and Merger Sub have fully paid, or on such caused to be fully paid, any and all commitment fees or other terms and conditions amounts that are acceptable to AGCO so long as such other terms due and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment payable by Parent or modification to be made to, Merger Sub on or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating prior to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect date of this Agreement pursuant to the Commitment Letter or otherwise in connection with the Financing. As of the date hereof, no party to any Commitment Letter has any right to impose, and Parent and Merger Sub do not have an obligation to accept, (A) any condition precedent to the funding of the Financing other than as expressly set forth in or contemplated by the Commitment Letter and the Fee Letter or such definitive documents(B) any reduction to the aggregate amount available under the Commitment Letter at Closing (nor any term or condition that would have the effect of reducing the aggregate amount available under the Commitment Letter at Closing) to an amount that would be insufficient for Parent and Merger Sub to consummate the Transactions, including payment of the Required Amount. As of the date hereof, and assuming the accuracy of the representations set forth in Article III, each of Parent and Merger Sub, as applicable, reduces the aggregate amount of the Committed Financing has no reason to believe that it will be unable to satisfy on a timely basis (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, ) any of the terms or (y) adversely impact the ability of AGCO conditions to enforce its rights against the other parties funding to be satisfied by it contained in the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Wesco International Inc), Agreement and Plan of Merger (Wesco International Inc), Agreement and Plan of Merger (Anixter International Inc)
Financing. (a) Subject Parent shall, and shall cause its Affiliates to, use reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on terms and conditions of this Agreementmaterially not less favorable than those described in the Debt Letters (including any flex provisions contained therein) no later than the time at which the Closing is required to occur pursuant to Section 2.3, AGCO shall use including, subject in all respects to Section 6.15(d), using its reasonable best efforts to obtain (i) (A) maintain in effect the Committed Debt Letters and comply with all of their respective obligations thereunder, (B) negotiate, enter into and deliver definitive agreements with respect to the Debt Financing on terms and conditions materially no less favorable to those described in the Debt Letters (taking into account including any reductions thereof flex provisions contained therein), so that such agreements are in effect no later than the time at which the Closing is required to occur pursuant to Section 7.15(b)(A)2.3 and (C) on solely if the Debt Financing Sources thereunder fail to fund the Debt Financing in accordance with the terms thereof, enforce their rights under the Debt Letters and (ii) satisfy on a timely basis all the conditions set forth in to the Commitment Letter (including any “flex” provisions in Debt Financing and the Fee Letter) or on such other terms and conditions definitive agreements related thereto that are acceptable in Parent’s (or its Affiliates’) control (it being understood that any condition where the failure to AGCO be so long as such other terms and conditions constitute Permitted Financing Termssatisfied is a direct result of the Company’s failure to comply with Section 6.15(d) shall not be in Parent’s (or its Affiliates’) control). Without the prior written consent of the Company, and AGCO shall Parent will not permit any amendment amendment, supplement, replacement or modification to be made, or any waiver of any provision or remedy under, any of the Debt Letters to the extent that any such amendment, supplement, replacement or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter Debt Letters would (i) add new conditions or the Fee Letter (or following entry into definitive documents relating expand any existing conditions to the Committed Financingconsummation or availability of the Debt Financing as compared to those in the Debt Letters as of the date hereof, such definitive documents(ii) if such amendment, modification or waiver (A) with respect to reduce the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing such that the amount of fees to aggregate funds that would be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing together with other immediately available cash resources of the Marketing PeriodParent, or would not be sufficient to pay the Merger Consideration and any other amounts required to be paid in connection with the consummation of the Transactions, (yiii) adversely impact affect the ability of AGCO the Parent to enforce its rights against the other parties Debt Financing Sources party to the Commitment Letter Debt Letters in any material respect (the event such Debt Financing Sources fail to fund the Debt Financing in accordance with the terms of such Debt Letters or (iv) reasonably be expected to prevent, materially delay or impair the consummation of the Debt Financing contemplated hereby, it being understood and agreed that in any event, Parent may, without the written consent of the Company, amend, supplement, or otherwise modify or waive its rights under any Debt Letter to (i) terminate any Debt Letter in order to obtain, Substitute Debt Financing sources in lieu of the Debt Financing in accordance with the terms in Section 6.15(b) or (ii) add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar entities, to provide for the assignment and reallocation of a portion of the financing commitments contained therein (it being understood that the aggregate commitments of the Debt Financing Sources party to the Debt Letters prior to such amendmentamendment or modification (but not the aggregate commitments thereunder) may be reduced in the amount of such additional party’s commitment). Parent shall as promptly as practicable (and in any event within two (2) Business Days thereof) provide the Company with copies of any replacement, modification amendment or waiver not of any Debt Letters; provided that, in violation the case of these clauses any fee letter (A) including any exhibits, schedules and (Bannexes thereto, or any replacement, amendment or waiver thereof), the fee amounts, pricing caps and the rates, amounts and other economic terms included in the “Permitted Financing Terms”); providedmarket flex” and certain other economic terms contained therein may be redacted so long as none of such redacted provisions adversely affect the conditionality, that subject to compliance with the other enforceability or termination provisions of this Section 7.15, AGCO may amend the Commitment Letter Debt Letters or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies reduce the aggregate principal amount of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Debt Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedthereby.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Albertsons Companies, Inc.), Agreement and Plan of Merger
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter (including Letters and any “flex” provisions in the related Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Letters. Purchaser shall not permit any amendment amendment, modification or modification supplement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless discount), when taken together with Purchaser’s cash on hand, to an amount below the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))satisfy Purchaser’s obligations under this Agreement, or (Bii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Debt Financing or other terms in a manner that would, in the case of this subclause (B), could reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (or prevent the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”)Closing; provided, however, that subject to compliance Purchaser may, after consultation with the other provisions of this Section 7.15Seller, AGCO may replace or amend the Debt Commitment Letter or such definitive documents Letters to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities who had not executed the Debt Commitment Letters as of the date hereof so long as such action would not reasonably be expected to materially delay or assign or reassign titles or roles toprevent the Closing; provided, further, that the exercise of any “flex” provisions in the Fee Letter shall not be considered an expansion, amendment, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies modification of any such amendment, modification of the conditions to the receipt of the Debt Financing or replacementother terms in a manner that could reasonably be expected to delay in any material respect or prevent the Closing. For purposes of Any reference in this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references Agreement to (x) “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to (i) obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or on other terms no less favorable, in aggregate, to Parent and Merger Sub than those described in the Fee Letter Debt Commitment Letter, (or following entry into definitive documents relating to ii) maintain in effect the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Debt Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms until the Transactions are consummated, (iii) satisfy, or unless concurrently replaced by commitments from cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Debt Commitment Letter applicable to Parent and/or Merger Sub that are within its control, including paying when due all commitment fees and other fees arising under the Financing Documents as and when they become due and payable thereunder, (iv) consummate the Financing at or prior to the Effective Time, and (v) subject to Section 9.08, enforcing the obligations of the parties to the Debt Commitment Letter to the extent necessary to fund the Merger Consideration; provided, that Parent and/or Merger Sub may amend or modify the Debt Commitment Letter, and/or elect to replace all or any portion of the Debt Financing or increase the amount of debt financing sources to be obtained with alternative debt financing on terms and with conditions not materially less favorable, in the aggregate, than the terms and conditions as set forth in the Debt Commitment Letter as in effect on the date of from proceeds of other sources of financing this Agreement or cash as amended or otherwise modified in accordance with Section 7.15(b)(A)6.07(b) (the “Alternative Financing”), in each case so long as (A) the aggregate proceeds of the Debt Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing, will be sufficient for Parent and the Surviving Company to pay (i) the Merger Consideration, and (ii) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and (B) imposes new such amendment or additional conditions modification or otherwise expandsthe Alternative Financing would not prevent, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent materially delay or materially delay the Closing impede or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact impair the ability of AGCO Parent and Merger Sub to enforce its rights against consummate the other parties Transactions. Parent shall deliver to the Commitment Letter in Company true and complete copies of all Contracts or other arrangements pursuant to which any material respect alternative sources have committed to provide the Alternative Financing (the terms of any such amendment, modification or waiver not in violation of these clauses (A“Alternative Financing Documents”) and (B), the “Permitted Financing Terms”)as promptly as practicable after execution thereof; provided, that subject such Alternative Financing Documents may be redacted in a customary manner to compliance with omit fee amounts and the flex provisions provided therein and other provisions information customarily redacted. In the event any portion of this Section 7.15the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Parent shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and notify the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedCompany.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Zhang Ray Ruiping), Agreement and Plan of Merger (BPEA Teamsport LTD), Agreement and Plan of Merger (eHi Car Services LTD)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall use its reasonable best efforts (unless, with respect to any action, another standard for performance is expressly provided for herein) to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A6.15(b)(I)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in taking into account the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsanticipated timing of the Marketing Period Termination Date), and AGCO Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing), such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with any reductions permitted pursuant to Section 7.15(b)(A6.15(b)(I)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendmentprovided that, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.156.15, AGCO Buyer may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoagents). AGCO Buyer shall promptly deliver to Trimble Seller copies of any such amendment, modification or replacement. For purposes of this Section 7.15 6.15 and Section 5.6 5.8 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceSource and the Marketing Period Termination Date, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a6.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a6.15(a) to be amended, modified or replaced.
Appears in 3 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Verizon Communications Inc), Securities Purchase Agreement (Frontier Communications Corp)
Financing. (a) Subject Each of Parent and Sub shall use, and cause its Affiliates to the terms and conditions of this Agreementuse, AGCO shall use its reasonable best efforts (unless, with respect to any action, another standard for performance is expressly provided for herein) 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 and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions (including the flex provisions) set forth in the Financing Agreements and any related Fee Letter (taking into account the anticipated timing of the Marketing Period), including using reasonable best efforts to seek to enforce (including through litigation) its rights under the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted event of a material breach thereof by the Financing Termssources thereunder, and AGCO shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Commitment Letter Financing Agreements or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Financing Agreements, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingreceipt of the Financing in a manner adverse to Parent or the Company, (iii) decreases the aggregate Equity Financing as set forth in the Equity Financing Commitment delivered on the date hereof, (iv) amends or modifies any other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Offer Closing or the availability of the Committed Financing on the Merger Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) make the timely funding of the Financing or satisfaction of the conditions to obtaining the Financing less likely to occur or (v) adversely impact the ability of AGCO Parent or Sub to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementAgreements. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references toclarification, the Financing, foregoing shall not prohibit Parent from amending the Debt Commitment Letter and any Committed Financing Source, any Financing Source, references related Fee Letter to “Committed add additional lender(s) (and Affiliates of such additional lender(s)) as a party thereto. Any reference in this Agreement to (A) ‘‘Financing” shall include the financing contemplated by the Commitment Letter (Financing Agreements as amended or definitive financing documents related thereto) as permitted by modified in compliance with this Section 7.15(a7.08(a), and (B) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger, Agreement and Plan of Merger (Burger King Holdings Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Mercury 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 and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter, including using reasonable best efforts to (i) maintain in effect the Commitment Letter, (ii) negotiate definitive agreements with respect thereto on terms and conditions (including the “flex” provisions) contemplated by the Commitment Letter (any such agreements the “Financing Definitive Agreements”), and execute and deliver to Saturn a copy thereof as promptly as practicable (and no later than one (1) Business Day) after such execution, (iii) satisfy on a timely basis all conditions applicable to the Financing in the Commitment Letter or the Financing Definitive Agreements that are within the control of Mercury and comply with its obligations thereunder, (iv) consummate the Financing at or prior to the Closing; provided, that under no circumstances shall Mercury or any of its Subsidiaries be required to issue, or permit Saturn or any of its Subsidiaries to issue, any equity or debt securities, incur, or permit Saturn or any of its Subsidiaries to incur, Indebtedness (other than pursuant to the Financing) or sell, dispose or otherwise transfer, or permit Saturn or any of its Subsidiaries to sell, dispose or otherwise transfer, any assets in order to satisfy any conditions in the Commitment Letter or in order to arrange or obtain any Financing and (v) enforce its rights under the Commitment Letter or the Financing Definitive Agreements in the event of a breach by the financing sources that impedes or delays the Closing, including seeking specific performance of the parties thereunder. In the event that all conditions to the Commitment Letter or the Financing Definitive Agreements have been satisfied or, upon funding will be satisfied, Mercury shall use its reasonable best efforts to cause the lenders and the other Persons providing such Financing to fund on the Closing Date the Financing required to consummate the Mergers and the other transactions contemplated by this Agreement (including any “flex” provisions in by taking enforcement action, including seeking specific performance, to cause such lenders and the Fee Letter) other Persons providing such Financing to fund such Financing). Mercury shall have the right from time to time to amend, replace, supplement or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made tootherwise modify, or waive any waiver of any provision its rights under, the Commitment Letter or the Fee Letter (Financing Definitive Agreements and/or substitute other debt or following entry into definitive documents relating to equity financing for all or any portion of the Committed FinancingFinancing from the same and/or alternative financing sources; provided, such definitive documents) if that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter or the Financing 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 or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the Financing Definitive Agreements or (B) prevent or impede or materially delay the consummation of the Mergers and the other transactions contemplated by this Agreement. Mercury shall be permitted to reduce the amount of Financing under the Commitment Letter or the Financing Definitive Agreements in its reasonable discretion; provided, that Mercury shall not reduce the Financing to an amount committed below the amount that is required, together with respect the Repayment Amount and the financial resources of Mercury, including cash on hand and marketable securities, to consummate the Mergers; and provided, further, that such reduction shall not (x) expand upon the conditions precedent or contingencies to the funding on the Closing Date of the Financing as set forth in the Commitment Letter or the Financing Definitive Agreements or (y) prevent or materially impede or materially delay the consummation of the Mergers and the other transactions contemplated by this Agreement. If any portion of the Financing becomes unavailable or Mercury becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the terms and conditions (including the “flex” provisions) contemplated in the Commitment Letter or the Financing Definitive Agreements and such portion is reasonably required to fund the aggregate Cash Consideration, Mercury shall use its reasonable best efforts to arrange and obtain alternative debt financing from the same and/or alternative financial institutions in an amount sufficient to consummate the transactions contemplated by this Agreement, upon terms and conditions not materially less favorable, in the aggregate, to Mercury or the Saturn Merger Surviving Corporation than those in the Commitment Letter or the Financing Definitive Agreements as promptly as practicable following the occurrence of such event. Mercury shall give Saturn prompt oral and written notice (but in any event not later than one (1) Business Day after the occurrence) of any material breach by any party to the Commitment Letter or the Fee Letter Financing Definitive Agreements or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees any condition not likely to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated satisfied, in each case, of which Mercury has Knowledge, any termination of the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any the Financing Definitive Agreements. Mercury shall keep Saturn informed on a reasonably current basis of the conditions status of its efforts to consummate the Financing. For the avoidance of doubt, the syndication of the Financing to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated extent permitted by the Commitment Letter (or definitive financing documents related thereto) as permitted by shall not be deemed to violate Mercury's obligations under this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merck & Co Inc), Agreement and Plan of Merger (Schering Plough Corp)
Financing. (a) Subject Buyer 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 to consummate and obtain the Financing on the terms and subject only to the conditions (including the market “flex” provisions) set forth in the Commitment Papers contemporaneously with the Closing, including by using its reasonable best efforts to (i) maintain in effect the Commitment Papers, (ii) negotiate and enter into definitive agreements with respect to the Financing (the “Definitive Agreements”) consistent with the terms and conditions contained in the Commitment Papers and (iii) if all of this Agreementthe conditions to the Closing contained in Article VI are satisfied or waived (other than those conditions that by their terms are to be satisfied or waived at the Closing or will be satisfied or waived upon funding) and the Marketing Period has ended, AGCO satisfy on or prior to the Closing Date all conditions in the Commitment Papers and the Definitive Agreements and comply with its obligations thereunder. In the event that all conditions contained in the Commitment Papers or the Definitive Agreements (other than the consummation of the Transaction and other than those that by their nature are to be satisfied at the Closing) have been satisfied or waived, Buyer shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in enforce its rights under the Commitment Letter (Papers, including any “flex” provisions in using reasonable best efforts to cause the Fee Letter) or on such other terms and conditions that are acceptable Lender Related Parties to AGCO so long as such other terms and conditions constitute Permitted Financing Termscomply with their respective obligations thereunder, and AGCO including to fund the Financing. Buyer shall not not, without the prior written consent of Seller, permit any amendment termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Papers if such termination, amendment, supplement, modification or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing, or (B) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions precedent to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent prevent, impede or materially delay the Closing or the availability funding of the Committed Financing on the Closing Date taking into account the expected timing of the Closing DateFinancing, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter in any material respect Papers or (D) would otherwise reasonably be expected to prevent or impede or delay the terms funding of any such amendmentthe Financing, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance at Closing, Buyer may reduce the commitments under the Commitment Papers substantially contemporaneously with the payment of all amounts due at Closing to the extent Buyer is using funds other provisions than proceeds of this Section 7.15, AGCO may amend the Commitment Letter or Financing to make such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretopayments. AGCO Buyer shall promptly deliver to Trimble Seller true and complete copies of any such amendment, modification modification, supplement, consent or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, waiver to or under any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedPapers promptly upon execution thereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Science Applications International Corp), Asset Purchase Agreement (Unisys Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 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 to arrange and obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter Letters (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, or remedy under either of the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Letters if such amendment, modification or waiver (Aw) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Letters, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bx) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingreceipt of the Debt Financing in a manner adverse to Parent or the Company, (y) amends or modifies any other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (x1) delay or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account or (2) make the expected timing timely funding of the Closing Date, taking into account the expected timing Debt Financing or satisfaction of the Marketing Period, conditions to obtaining the Debt Financing less likely to occur or (yz) adversely impact the ability of AGCO Parent to enforce its rights against the other parties to the Commitment Letter Letters), including using commercially reasonable efforts to (i) maintain in any material effect the Commitment Letters until the transactions contemplated by this Agreement are consummated, (ii) satisfy on a timely basis all conditions and covenants applicable to Parent, Merger Sub and Merger LLC in the Commitment Letters and otherwise comply with its obligations thereunder, (iii) enter into definitive agreements with respect (thereto on the terms of any such amendment, modification or waiver not in violation of these clauses and conditions (Aincluding the market flex provisions) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter Letters, (iv) consummate the Debt Financing at or prior to Closing, (v) enforce its rights under the Commitment Letters, including through litigation pursued in good faith and (vi) cause the Financing Sources and other Persons providing Debt Financing to fund on the Closing Date the Debt Financing required to consummate the Merger, the LLC Merger and the other transactions contemplated hereby, including through litigation pursued in good faith. Without limiting the generality of the foregoing, Parent, Merger Sub and Merger LLC shall give the Company prompt notice: (A) of any 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 breach or default of which it becomes aware) by any party to the Commitment Letters or definitive financing document related to the Debt Financing; (B) of the receipt of any written notice or other written communication from any other party to the Commitment Letters with respect to any: (x) actual or potential breach, default, termination or repudiation by any other party to the Commitment Letters or any definitive document related to the Debt Financing or any provisions of the Commitment Letters or any definitive document related to the Debt Financing or (y) material dispute or disagreement between or among any parties to the Commitment Letters or any definitive document related to the Debt Financing; and (C) if for any reason Parent, Merger Sub or Merger LLC believes in good faith that (I) there is (or there is likely to be) a dispute or disagreement between or among any parties to the Commitment Letters or any definitive document related to the Debt Financing or (II) there is a material possibility that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the manner or from the sources contemplated by the Commitment Letters or the definitive documents related theretoto the Debt Financing. As soon as reasonably practicable, but in any event within three Business Days after the date the Company delivers Parent, Merger Sub or Merger LLC a written request, Parent, Merger Sub and Merger LLC shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B) as permitted or (C) of the immediately preceding sentence. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the market flex provisions) contemplated in the Commitment Letters, Parent shall use its commercially reasonable efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Section 7.15(a) Agreement as promptly as practicable following the occurrence of such event, but no later than the Business Day immediately prior to be amendedthe Termination Date. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and concurrently provide copies of all documents provided to the Financing Sources or otherwise related to the Debt Financing to the Company. Notwithstanding anything to the contrary contained in this Agreement, modified or replaced and references to “Commitment Letter” shall include such document as permitted by nothing contained in this Section 7.15(a) 5.19 shall require, and in no event shall the commercially reasonable efforts of Parent or Merger Sub be deemed or construed to be amendedrequire, modified either Parent or replacedMerger Sub to pay any material fees in excess of those contemplated by the Commitment Letters (whether to secure waiver of any conditions contained therein or otherwise).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Integral Systems Inc /Md/), Agreement and Plan of Merger (Kratos Defense & Security Solutions, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO The Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, (i) Equity Financing Commitment (the Commitment Letter “Equity Financing”), or (ii) the Fee Letter (or following entry into definitive documents relating to Debt Financing Commitments if, in the Committed Financingcase of the Debt Financing Commitments, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (Ax) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed financing contemplated by the Debt Financing Commitments (including by increasing the “Debt Financing” and together with the Equity Financing, the “Financing”) to an amount committed below the amount that is required, together with other financial resources of fees the Buyer, including amounts available under the Equity Financing Commitment, cash, cash equivalents and marketable securities of the Buyer on the Closing Date, to be paid or original issue discount unless finance the Committed Financing is increased by a corresponding amount or Purchase Price on the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), set forth herein or (By) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or (B) materially delay, prevent or otherwise make materially less likely to occur the availability funding of the Committed Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) and shall use commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Debt Financing on the Closing Date taking into account terms and described in the expected timing Debt Financing Commitments (provided, however, that the Buyer may amend or replace the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed a Debt Financing Commitment as of the Closing Datedate hereof), taking into account including using commercially reasonable efforts to (i) maintain in effect the expected timing of the Marketing PeriodDebt Financing Commitments, or (yii) adversely impact the ability of AGCO to enforce its rights against the other parties satisfy on a timely basis all conditions applicable to the Commitment Letter in any material Buyer to obtaining the Debt Financing at the Closing set forth therein, (iii) enter into definitive agreements with respect (thereto on the terms of any such amendment, modification or waiver not in violation of these clauses and conditions (Aincluding the flex provisions) contemplated by the Debt Financing Commitments (and provide copies thereof to the Seller upon reasonable request) and (B), iv) consummate the “Permitted Debt Financing Terms”); provided, that subject to compliance in accordance with the other provisions terms and conditions of this Section 7.15, AGCO may amend the Commitment Letter Debt Financing Commitments at or such definitive documents prior to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedClosing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Commitment Letter or Debt Financing Commitment, without the Fee Letter (or following entry into definitive documents relating to the Committed Financingprior written consent of Seller, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (Ai)(A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Agreement and pay all fees and amounts in connection with this Agreement, the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Ancillary Agreements and the transactions contemplated hereby and thereby, or (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the Committed receipt of the Debt Financing, in a manner that wouldor (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment, in the case of this subclause clause (BC), in a manner that would reasonably be expected to (xI) prevent or materially delay or prevent the Closing Closing, (II) adversely impact in any material respect the ability of Purchaser to enforce its rights under the Debt Financing Commitment or the definitive agreements with respect thereto or (III) materially delay or impair the availability of the Committed Debt Financing on at the Closing Date taking into account or materially impede the expected timing satisfaction of the conditions to obtaining the Debt Financing at the Closing Date(clauses (A), taking into account (B) and (C), collectively, the expected timing “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the Marketing Perioddate hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (y2) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect connection with a Permanent Financing or an alternative financing as contemplated by clause (the terms of any such amendment, modification or waiver not in violation of these clauses (Ab) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.156.12) or (ii) results in the early termination of the Debt Financing Commitment, AGCO may amend other than any termination of the Debt Financing Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies in accordance with its terms upon consummation of any such amendment, modification or replacement. For purposes Permanent Financing in accordance with clause (b) of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced6.12.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain without the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on consent of the terms Company each of Parent and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall Merger Sub will not permit any amendment amendment, replacement, supplement or modification to be made to, or any waiver of any provision underor remedy pursuant to, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating Letters prior to the Committed Financing, such definitive documents) Effective Time if such amendment, replacement, supplement, modification or waiver would, or would reasonably be expected to, (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate net amount of the Committed Financing (below the Required Financing Amount, including by increasing changing the amount of the fees to be paid or the original issue discount unless of the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountDebt Financing; (ii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt of the Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x1) prevent or materially delay or prevent the Closing of the Merger or (2) make the timely funding of the Financing, or the availability satisfaction of the Committed Financing on conditions to obtaining the Closing Date taking into account the expected timing of the Closing DateFinancing, taking into account the expected timing of the Marketing Period, less likely to occur in any material respect; or (yiii) adversely impact the ability of AGCO 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 material respect of the outcomes described in the foregoing clauses (the terms i)-(iii), (3) implementation or exercise of any such “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 not relating to the Commitment Letters. Any reference in violation of these clauses this Agreement to (Ax) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall will include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Letters as permitted by this Section 7.15(a) to be amended, modified replaced, supplemented or replaced modified; and references to (y) “Equity Commitment Letter,” “Debt Commitment Letters” or “Commitment LetterLetters” shall will include such document documents as permitted by this Section 7.15(a) to be amended, modified amended or replacedmodified.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Moneygram International Inc), Agreement and Plan of Merger (Moneygram International Inc)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, AGCO and except to the extent that Parent has completed an offering of debt securities or another financing the net cash proceeds of which replace amounts that were to be provided under the Commitment Letter, Parent shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicableLetter, reduces (or could have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or otherwise expands, amends or modifies any other provision of the Commitment Letter, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay adversely affect the Closing or ability of Parent to fund its obligations at the availability of the Committed Financing on Offer Acceptance Time and the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto, in each of clauses (x) and (y) in any material respect (the terms of any such amendmentprovided that, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.156.14, AGCO Parent may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoin a manner that would not materially adversely affect the ability of Parent to fund its obligations at the Offer Acceptance Time and the Closing Date). AGCO Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source6.14, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced by this Section 6.14(a) and references to “Commitment Letter” shall include such document documents as permitted by this Section 7.15(a) to be amended, modified or replacedreplaced by this Section 6.14(a).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Amgen Inc), Agreement and Plan of Merger (Onyx Pharmaceuticals Inc)
Financing. (a) Subject Buyer shall, and shall cause its applicable Affiliates party to the terms and conditions of this AgreementFinancing Commitments to, AGCO shall use its reasonable best efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things necessary, proper or advisable to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as reasonably practicable on the terms (including, with respect to the Debt Financing, the “market flex” provisions) and subject only to the conditions set forth contained in the Commitment Letter Financing Commitments and in Sections 5.01 and 5.02 herein, and completion of the Marketing Period, including to (including any i) negotiate and enter into definitive agreements with respect to the Financing on the terms (including, with respect to the Debt Financing, the “market flex” provisions provisions) and subject only to the conditions contained in the Fee Letter) Financing Commitments or on such other terms and conditions that are acceptable to AGCO Buyer, so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver agreements (A) with respect do not contain any additional or modified conditions or other contingencies to the Commitment Letter or funding of the Fee Letter or such definitive documents, Financing than those contained in the Financing Commitments as applicable, reduces of the date of this Agreement and (B) do not reduce the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated set forth in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any Financing Commitments as of the conditions to the Committed Financingdate of this Agreement, unless (1) in a manner that would, in the case of this subclause clause (B), reasonably be expected replaced with an amount of new debt or equity financing on conditions no less favorable to (x) prevent or materially delay Seller than the Closing terms set forth in the Debt Financing Commitment or the availability Equity Financing Commitment, as applicable, as of the Committed Financing on the Closing Date taking into account the expected timing date hereof and (2) in case of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these foregoing clauses (A) and (B), such agreements are not reasonably likely to impair or delay the “Permitted funding of the Financing Terms”); providedor the Closing, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of(ii) satisfy, and references tocause its Affiliates to satisfy, on a timely basis (after giving effect to the Financing, any Committed entire period of the Marketing Period) all conditions applicable to Buyer or its Affiliates contained in the Financing Source, any Commitments and (iii) consummate the Financing Source, references to “Committed Financing” shall include at the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedClosing.
Appears in 2 contracts
Samples: Equity Purchase Agreement (Sinclair Broadcast Group Inc), Equity Purchase Agreement (Walt Disney Co)
Financing. (a) Subject to During the terms and conditions of this AgreementPre-Closing Period, AGCO 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 obtain the Committed Equity Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Equity Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO as Parent shall agree so long as such other not in contravention of this Section 6.15(a)), including maintaining in effect the Equity Commitment Letter in accordance with the terms and subject to the conditions constitute Permitted Financing Termsthereof, complying with its obligations pursuant to the Equity Commitment Letter and AGCO enforcing its rights pursuant to the Equity Commitment Letter. Parent shall cooperate with and assist the Company in enforcing its third party beneficiary rights under the Equity Commitment Letter. Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Equity Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver would, or would reasonably be expected to (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Equity Financing (including except as expressly permitted by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Equity Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)Letter), or (Bii) imposes impose new or additional conditions or other terms or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt of the Equity Financing or any other terms to the Equity Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) delay or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account or (B) make the expected timing timely funding of the Marketing PeriodEquity Financing, or the satisfaction of the conditions to obtaining the Equity Financing, less likely to occur in any respect, or (yiii) adversely impact the ability of AGCO Parent, Merger Sub or the Company, as applicable, to enforce its rights against under the other parties Equity Commitment Letter, in each case, unless otherwise agreed to by the Company in writing. Parent shall give the Company prompt written notice of any material breach by any party to the Equity Commitment Letter in Letter, of which Parent becomes aware, or any material respect (termination of the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Equity Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies unavailability of any such amendment, modification or replacement. For purposes portion of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Equity Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Goldfield Corp), Agreement and Plan of Merger (Goldfield Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Debt Financing Commitment Letter or and/or the Fee Letter (or following entry into definitive documents relating to Escrow Indenture Documents, without the Committed Financingprior written consent of Seller, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (i) (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from to an amount that is below an amount that, assuming the accuracy of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Amended Agreement and pay all fees and amounts in connection with this Amended Agreement, the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Ancillary Agreements and the transactions contemplated hereby and thereby, or (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the Committed receipt of the Debt Financing, in a manner that wouldor (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment and/or the Escrow Indenture Documents, in the case of this subclause clause (BC), in a manner that would reasonably be expected to (xI) prevent or materially delay or prevent the Closing Closing, (II) adversely impact in any material respect the ability of Purchaser to enforce its rights under the Debt Financing Commitment or the definitive agreements with respect thereto and/or the Escrow Indenture Documents or (III) materially delay or impair the availability of the Committed Debt Financing on at the Closing Date taking into account or materially impede the expected timing satisfaction of the conditions to obtaining the Debt Financing at the Closing Date, taking into account the expected timing (including release of the Marketing Periodproceeds of the Escrow Notes from escrow) (clauses (A), (B) and (C), collectively, the “Restricted Financing Commitment Amendments”) (provided that, subject to the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (y2) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect connection with an alternative financing as contemplated by clause (the terms of any such amendment, modification or waiver not in violation of these clauses (Ab) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend 6.12) or (ii) results in the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies early termination of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Debt Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedCommitment.
Appears in 2 contracts
Samples: Acquisition Agreement (SB/RH Holdings, LLC), Acquisition Agreement (Energizer Holdings, Inc.)
Financing. (a) Subject to the terms SJW shall, and conditions of this Agreementshall cause its Affiliates to, AGCO shall use its their respective reasonable best efforts to obtain 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 to consummate the Committed Financing or any Substitute Financing on or prior to the Closing Date, including (taking into account any reductions thereof i) maintaining in effect the Commitment Letter until the Closing (provided that the Commitment Letter may be amended, supplemented, modified and replaced as permitted pursuant to this Section 7.15(b)(A6.12), (ii) negotiating and entering into definitive agreements with respect to the Financing on the terms and conditions set forth contained in the Commitment Letter (including any “flex” provisions in the Fee Letterrelated thereto) or on such other terms and conditions that are acceptable to AGCO so long as SJW and its Financing Sources (provided that such other terms and conditions constitute Permitted Financing Terms, and AGCO shall could not permit any amendment or modification reasonably be expected to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsx) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing or the net cash proceeds from the Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that below the amount required by SJW to consummate the transactions contemplated in the Commitment Letter or such definitive documents by this Agreement, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (By) imposes impose new or additional conditions or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, receipt of the Financing in a manner that would, in the case of this subclause (B), could reasonably be expected to (xi) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to the expected timing of the Marketing Period, Financing) or (yii) adversely impact the ability of AGCO SJW to enforce its rights against the Financing Parties or any other parties to the Commitment Letter in any material or the definitive agreements with respect thereto, or (z) make it less likely that the terms Financing would be funded (including by making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of any such amendment, modification or waiver not in violation of these clauses (A) SJW to consummate the Merger and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions transactions contemplated hereby on the Closing Date) so that such agreements are in effect no later than the Closing, (iii) satisfying all the conditions to the Financing within the control of this Section 7.15SJW at or prior to the Closing, AGCO may amend (iv) accepting to the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to fullest extent all “Committed Financingmarket flex” shall include the financing contemplated by the Commitment Letter (or any fee letter relating thereto), to the extent deemed necessary under the Commitment Letter and (v) enforcing its rights under the Commitment Letter. In the event that all conditions set forth in the Commitment Letter have been satisfied (other than the consummation of the Merger) or, upon funding shall be satisfied, SJW and its Affiliates shall use their reasonable best efforts to cause the Persons providing the Financing (the “Financing Parties”) to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby. SJW shall, promptly after obtaining knowledge thereof (and in any event within two Business Days), give CTWS written notice of any (A) breach (or threatened 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 breach or default) by a Financing Party or any party to any definitive financing document related to the Financing, (B) actual or threatened withdrawal, repudiation or termination of the Financing by the Financing Parties, (C) amendment or modification of, or waiver under, the Commitment Letter or (D) change, circumstance or event which causes SJW to believe that it will not be able to timely obtain all or any portion of the Financing on the terms, in the manner or from the Financing Parties or sources contemplated by the definitive documents related theretoto the Financing, to the extent the proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby. SJW shall (i) keep CTWS informed on a reasonably current basis of the status of its efforts to arrange the Financing, and (ii) provide CTWS with copies of all executed material definitive agreements related to the Financing. SJW shall, and shall use its reasonable best efforts to cause the Financing Sources to, provide CTWS and its Representatives with such access to SJW and the Financing Sources as CTWS and its Representatives may reasonably request for the purpose of allowing CTWS and its Representatives to understand the status of SJW’s efforts to arrange the Financing; provided, that SJW and its Representatives shall be permitted to participate in any such discussions or communications. Neither SJW nor its Affiliates shall amend, modify or replace the Commitment Letter without the prior written approval of CTWS to the extent such amendment, modification or replacement could reasonably be expected to (I) reduce the aggregate amount of the Financing or the net cash proceeds from the Financing (including by increasing the amount of fees to be paid or original issue discount) below the amount required by SJW to consummate the transactions contemplated by this Agreement, (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 could reasonably be expected to (1) delay or prevent or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) or (2) adversely impact the ability of SJW to enforce its rights against the Financing Parties or any other parties to the Commitment Letter or the definitive agreements with respect thereto, or (III) make it less likely that the Financing would be funded (including by making the conditions to obtaining the Financing less likely to occur) or otherwise prevent or delay or impair the ability or likelihood of SJW to consummate the Merger and the other transactions contemplated hereby on the Closing Date; provided that notwithstanding the foregoing, SJW may modify, supplement or amend the Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities (that have not executed the Commitment Letter as of the Execution Date). If funds in the amounts set forth in the Commitment Letter, or any portion thereof, become unavailable, or it becomes reasonably likely that such funds may become unavailable to SJW on the terms and conditions set forth therein and, in each case, such funds are required by SJW to consummate the transactions contemplated by this Agreement, SJW shall, and shall cause its Affiliates, as promptly as practicable (and in any event within two Business Days) following the occurrence of such event to (x) notify CTWS in writing thereof and (y) use its reasonable best efforts to obtain substitute financing on terms and conditions not materially less favorable in the aggregate to SJW than those set forth in the Commitment Letter and in an amount sufficient to enable SJW to consummate the Merger and the other transactions contemplated hereby in accordance with its terms (the “Substitute Financing”). In the event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other modification of the Commitment Letter (including in connection with any Substitute Financing) permitted pursuant to this Section 7.15(a) 6.12, such new commitment letters shall be deemed to be amended, modified or replaced a part of the “Financing” and references deemed to be the “Commitment Letter” for all purposes of this Agreement. SJW shall include such document as permitted by this Section 7.15(a) promptly deliver to be amendedCTWS copies of any termination, modified amendment, modification, waiver or replacedreplacement of the Commitment Letter (including in connection with any Substitute Financing).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Connecticut Water Service Inc / Ct), Agreement and Plan of Merger (SJW Group)
Financing. (a) Subject to The Buyer and the terms and conditions of this Agreement, AGCO shall Acquisition Sub will use its reasonable their best efforts to obtain the Committed proceeds of the Financing, including using their best efforts to (A) consummate the Financing contemplated by the Commitment Letters at such time as all conditions set forth in Section 7.1 are satisfied (taking except for those requiring delivery of a certificate evidencing certain matters), (B) maintain the effectiveness of the Commitment Letters (and the term sheets and fee letters related thereto) in accordance with their respective terms, other than such amendments or modifications as would not reasonably be expected to impair the Buyer and the Acquisition Sub’s ability to consummate the transactions contemplated hereby, (C) enter into account any reductions thereof pursuant definitive agreements with respect to Section 7.15(b)(A)) on the Financing contemplated by the Commitment Letters consistent with the terms and conditions set forth contained therein, and (D) satisfy on a timely basis all conditions precedent to funding in such definitive agreements and in the Commitment Letter Letters (including any “flex” provisions and the term sheets and fee letters related thereto); provided that, notwithstanding the foregoing, the Buyer may terminate, or allow the termination of, the Debt Commitment Letter, if prior thereto or substantially concurrently therewith the Buyer enters into a replacement commitment letter that contains no conditions precedent to funding thereunder beyond (or materially and adversely modified from) those in the Fee Debt Commitment Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made toprovides for financing in an amount that, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) when taken together with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless equity provided under the Committed Financing Equity Commitment Letter, is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from not less than that contemplated provided for in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any Financing as of the conditions date of this Agreement. For the avoidance of doubt, occurrence of the Financing and/or the Buyer’s receipt of the proceeds thereof shall not be a condition precedent to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability obligations of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 Buyer and the definitions of, and references to, Acquisition Sub to effect the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedMerger.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Verint Systems Inc), Agreement and Plan of Merger (Witness Systems Inc)
Financing. (a) Subject a. Notwithstanding anything to the terms and conditions of contrary contained in this Agreement, AGCO shall use its reasonable best efforts each of the parties hereto: (i) agrees that it will not bring or support any person in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any of lender under any existing loan facility of Parent or Merger Sub or provider of any commitment for any loan facility to obtain Parent or Merger Sub (the Committed “Financing Sources”) in any way relating to this Agreement or any of the transactions contemplated by this Agreement, including, but not limited to, any dispute arising out of or relating in any way to any commitment letters or any loan agreement related to any financing, or financing commitment, provided or to be provided by any Financing Source (taking into account any reductions such financing a “Financing” and any such agreement or commitment a “Facility Commitment”) or the performance thereof pursuant to Section 7.15(b)(A)or the financings contemplated thereby, in any forum other than the federal and New York state courts located in the Borough of Manhattan within the City of New York; (ii) on the terms and conditions agrees that, except as specifically set forth in the Commitment Letter any Facility Commitment, all claims or causes of action (including any “flex” provisions whether at law, in the Fee Letterequity, in contract, in tort or otherwise) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies against any of the conditions Financing Sources in any way relating to any Facility Commitment or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to principles or rules or conflict of laws to the Committed Financingextent such principles or rules would require or permit the application of laws of another jurisdiction; and (iii) hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation (whether in law or in equity, whether in a manner that would, contract or in the case tort or otherwise) directly or indirectly arising out of this subclause (B), reasonably be expected or relating in any way to (x) prevent or materially delay the Closing any Facility Commitment or the availability of performance thereof or the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing financings contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedthereby.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Athenahealth Inc), Agreement and Plan of Merger (Epocrates Inc)
Financing. (a1) Subject to The Purchaser shall not, without the terms and conditions prior written consent of this Agreementthe Company acting reasonably, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver or release of any provision underor remedy pursuant to, the Equity Commitment Letter or the Fee Debt Commitment Letter (or following entry into any definitive documents relating to the Committed Financing, such definitive documents) documentation in connection therewith if such amendment, modification modification, waiver or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces release would reduce the aggregate amount of either the Committed Equity Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Debt Financing below that which is otherwise made available required to fund such fees or original issue discount) from that contemplated in provide the Commitment Letter or such definitive documents (other than in accordance Purchaser with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))the funds necessary for it to consummate the Transactions at the Closing, or (B) imposes impose new or additional conditions or otherwise expands, amends or modifies expand any of the conditions to the Committed receipt of either the Equity Financing or the Debt Financing, in each case, in a manner that would, in the case of this subclause (B), would be reasonably be expected to (x) delay, impede or prevent or materially delay the Closing funding of the Debt Financing or the availability Equity Financing or the ability of the Committed Financing on Purchaser to consummate the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, Transactions or (y) adversely impact the ability of AGCO the Purchaser to enforce its rights against the other parties Debt Financing Sources or Equity Financing Source or under any definitive documentation with respect thereto. The Purchaser shall not release or consent to the termination of the obligations of the Debt Financing Sources under the Debt Commitment Letter in any material respect (or the Equity Financing Source under the Equity Financing Letter, except for assignments and replacements of a Debt Financing Source under the terms of any such amendmentof, modification or waiver not and only in violation of these clauses (A) and (B)connection with, the “Permitted syndication of the Debt Financing Terms”); provided, that subject pursuant to compliance the Debt Commitment Letter and except in connection with the other provisions entry into any alternative financing that satisfies the requirements of this Section 7.154.11. For the avoidance of doubt, AGCO the Purchaser may amend amend, supplement, modify or replace the Debt Commitment Letter as in effect at the date hereof, (1) as expressly permitted by Section 4.11(3) below or such definitive documents (2) in any manner consistent with the immediately preceding sentence, including, (w) as required pursuant to correct typographical errorsthe “market flex” provisions in the Debt Fee Letter, (x) to add additional or replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments other parties (for the avoidance of doubt, providing additional or assign replacement lenders, lead arrangers, bookrunners, syndication agents or reassign titles similar entities with consent rights with respect to existing conditions shall not constitute the addition, expansion, amendment or roles tomodification of any condition of the Debt Financing), (y) to increase the amount of indebtedness available thereunder, or between (z) subject to the first sentence of this Section 4.11(1), to add or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification replace facilities with one or replacementmore new facilities. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed FinancingDebt Commitment Letter” shall include the financing contemplated by the Commitment Letter (or definitive financing such documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced4.11.
Appears in 2 contracts
Samples: Arrangement Agreement, Arrangement Agreement (Dominion Diamond Corp)
Financing. (a) Subject IP, Spinco and UWWH shall use, and shall cause their respective Subsidiaries and Representatives and advisors to use, their reasonable best efforts to arrange and to consummate the Spinco Financing as soon as reasonably practicable after the date of this Agreement on terms and conditions no less favorable in the aggregate than the terms set forth in the Spinco Commitment Letter (including any market “flex” provisions) as in effect on the date hereof, as it may be amended or replaced in accordance with the terms of this Section 8.19, including using their respective reasonable best efforts, as applicable, to (i) maintain in effect the Spinco Commitment Letter, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to IP, Spinco or UWWH, as the case may be, in the Spinco Commitment Letter and such definitive documents to be entered into pursuant to the Spinco Commitment Letter, (iii) negotiate and enter into definitive agreements with respect thereto consistent with the terms and conditions contained in the Spinco Commitment Letter provided on the date of this AgreementAgreement (including any market “flex” provisions, AGCO if any) or on other terms no less favorable in the aggregate to IP, Spinco or UWWH (in each case, upon written consent of IP and UWWH to enter into such definitive agreements in the event the terms thereof are inconsistent with the terms contained in the Spinco Commitment Letter delivered on the date hereof , as it may be amended or replaced in accordance with this Section 8.19), (iv) in the case of Spinco, comply with its obligations and, in the case of IP and UWWH, cooperate with Spinco to enable Spinco to comply with its obligations under the Spinco Commitment Letter (including, without limitation, in the case of IP, taking such actions as necessary to cause the payment to IP of the Special Payment and in the case of UWWH, the repayment in full of the Unisource Credit Facility in connection with the consummation of the Merger) and (v) cooperate in all aspects necessary or reasonably requested by IP or UWWH in connection with the arrangement and consummation of the Spinco Financing as required by the terms of the Spinco Commitment Letter, including, without limitation, (A) participation in a reasonable number of meetings, presentations, and meetings with, and presentations to, prospective lenders and rating agencies; (B) assisting with the marketing and due diligence efforts with respect to the Spinco Financing, including the preparation of materials for rating agency presentations, bank information memoranda, lender presentations and other customary marketing materials, including execution and delivery of customary authorization letters (by each of the Persons required by the Lenders to deliver such letters), in each case consistent with the terms required by the Spinco Commitment Letter in connection therewith; (C) furnishing financial and other information regarding UWWH, Spinco and their respective Subsidiaries, as required by the Spinco Commitment Letter (all such information in this clause (C), the “Required Information”); (D) using their reasonable best efforts to obtaining legal opinions, appraisals, surveys, title insurance and other documentation and items relating to the Spinco Financing as required by the Spinco Commitment Letter; (E) executing and delivering any pledge and security documents, other definitive financing documents, or other certificates, mortgages, documents and instruments relating to guarantees, or documents, in each case as and when required by the Spinco Commitment Letter (including a certificate of the Chief Financial Officer (or officer of equivalent duties) of Spinco or any Subsidiary with respect to solvency matters (which certificate shall use its be in the form attached to the Spinco Commitment Letter), all back-up and supporting information, as may be reasonably required by the person signing such certificate to support the conclusions set forth therein) and otherwise facilitating the pledging of collateral and providing of guarantees contemplated by the Spinco Commitment Letter (including cooperation in connection with the pay-off of existing Indebtedness and the release of related liens); (F) using their reasonable best efforts in taking all reasonable actions necessary to (I) permit the prospective persons involved in the Spinco Financing to evaluate UWWH, Spinco and their respective Subsidiaries, including Spinco’s and UWWH’s current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and (II) establish bank and other accounts, blocked account agreements and lock box arrangements in connection with the foregoing as required by the terms of the Spinco Commitment Letter, provided that no such arrangement or agreement shall become effective prior to the Closing Date; (G) using reasonable best efforts to obtain waivers, consents, estoppels and approvals from other parties to material leases, Encumbrances and Contracts to which any Subsidiary of Spinco or UWWH is a party, in each case to the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on extent required by the terms of the Spinco Commitment Letter; (H) furnishing all documentation and conditions other information concerning such Person under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the Patriot Act, and (I) using reasonable best efforts to cooperate with the lenders in their efforts to benefit from the existing lending relationships of IP, Spinco or UWWH; provided, however, that nothing herein shall require such cooperation to the extent it would interfere unreasonably with the business or operations of IP, Spinco or UWWH or any of their respective Subsidiaries; provided, further, that for the avoidance of doubt, nothing set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) this Section 8.19 shall require IP, Spinco or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, UWWH or any waiver of their respective Subsidiaries to enter into any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating documentation prior to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Closing Date (other than an authorization letter pursuant to clause (iv)(B) above) or deliver any financial statements except as expressly contemplated by the Spinco Commitment Letter provided on the date of this Agreement. IP, Spinco and UWWH will update any such Required Information in accordance with its order to ensure that such Required Information does not contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements contained therein not materially misleading, as and to the extent required by the terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions Spinco Commitment Letter. Each of Spinco and UWWH hereby consents to the Committed Financing, use of its and its Subsidiaries’ logos in connection with the Spinco Financing provided that such logos are used solely in a manner that would, in the case is not intended to or reasonably likely to harm or disparage it or its reputation or goodwill or any of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedintellectual property rights.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Xpedx Holding Co), Agreement and Plan of Merger (Xpedx Holding Co)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO and except to the extent that Buyer has completed an offering of debt securities or another financing the net cash proceeds of which replace amounts that were to be provided under the Commitment Letter, Buyer shall use its reasonable best efforts (unless, with respect to any action, another standard for performance is expressly provided for herein) to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in taking into account the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsanticipated timing of the Marketing Period Termination Date), and AGCO Buyer shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Debt Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces (or would reasonably be expected to have the effect of reducing) the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Debt Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))documents, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Debt Financing, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Debt Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter Letter, in each of clauses (x) and (y) in any material respect (the terms of any such amendmentprovided that, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.156.15, AGCO Buyer may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoagents). AGCO Buyer shall promptly deliver to Trimble Seller copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source6.15, references to “Committed Debt Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced by this Section 6.15(a) and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedreplaced by this Section 6.15(a).
Appears in 2 contracts
Samples: Stock Purchase Agreement (At&t Inc.), Stock Purchase Agreement (Frontier Communications Corp)
Financing. (a) Subject Borrower, Parent and Merger Sub shall (i) use commercially reasonable best efforts to (A) satisfy or cause to be satisfied on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Borrower, Parent and Merger Sub, as applicable, in the Commitment Letters and such definitive agreements to be entered into pursuant to the Commitment Letters that are within the control of Borrower, Parent and Merger Sub, (B) negotiate and enter into definitive agreements, or cause to be negotiated and entered into definitive agreements, with respect thereto consistent with the terms and conditions contained in the Commitment Letters or on other terms that are not materially less favorable, in the aggregate, to the Borrower, Parent and Merger Sub, as applicable, than the terms and conditions contemplated by the Commitment Letters, and (C) if all of this Agreementthe conditions set forth in Article 6 have been satisfied or, AGCO shall to the extent permitted hereunder, waived (other than those that by their nature can only be satisfied on the Closing Date, but subject to the satisfaction of such conditions on the Closing Date or waiver by the party entitled to waive such conditions), otherwise diligently and in good faith enforce its rights or use its commercially reasonable best efforts to obtain cause the Committed Financing (taking into account any reductions thereof pursuant Borrower to Section 7.15(b)(A)) on the terms and conditions set forth in enforce its rights under the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documentsLetters, as applicable, reduces the aggregate amount of the Committed Financing (including if necessary by increasing the amount of fees to be paid filing one or original issue discount unless the Committed Financing is increased by a corresponding amount more Proceedings against any or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other all parties to the Commitment Letter Letters to fully enforce the obligations of such party or parties therein, (ii) maintain, or use their respective commercially reasonable best efforts to cause the Borrower to, as applicable, maintain in any material respect (effect the terms Commitment Letters until the consummation of any such amendmentthe Transactions, modification or waiver not in violation of these clauses (A) and (B)iii) comply with, or use their respective reasonable best efforts to cause the “Permitted Financing Terms”); provided, that subject Borrower to compliance comply with the other provisions of this Section 7.15, AGCO may amend their respective obligations under the Commitment Letter or Letters. At the request of the Company, each of Borrower, Parent and Merger Sub shall provide the Company with such definitive documents to correct typographical errors, add additional lenders, arrangers information and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO documentation as shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated be reasonably requested by the Commitment Letter (or definitive Company to allow the Company to monitor the progress of such financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedactivities.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (AdTheorent Holding Company, Inc.), Agreement and Plan of Merger (AdTheorent Holding Company, Inc.)
Financing. (a) Subject to the terms Each of Parent and conditions of this Agreement, AGCO shall Merger Sub 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 to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Financing Letter, including using its reasonable best efforts (i) to maintain in effect the Financing Letter and, if entered into prior to the Closing, the definitive agreements with respect to the Financing contemplated by the Financing Letter, (ii) to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Letter (including any “flex” provisions thereof), and upon execution thereof, deliver a copy thereof to the Company, (iii) to satisfy (or obtain the waiver of) all conditions on a timely basis to obtaining the Financing applicable to each of Parent and Merger Sub set forth in such definitive agreements that are within its control, (iv) to comply in all material respects with its obligations under the Financing Letter (or obtain the waiver thereof) and (v) to enforce its rights under the Financing Letter in the Fee Letterevent of a breach or other failure to fund by the Lender that impedes or delays the Closing; provided, however, that nothing in this Section 6.12(a) shall require Parent or on such other Merger Sub to (x) consummate or agree to consummate the sale, divestiture or disposition of any assets, businesses or capital stock of Parent or any Parent Subsidiary or (y) agree to terms and conditions (including any “flex” provisions) that are acceptable are, in the aggregate, less favorable in any material respect to AGCO so long as Parent, Merger Sub and the Company than those contained in the Financing Letter (any such action, a “Burdensome Financing Action”). Parent shall give the Company prompt notice upon becoming aware of any material breach of the Financing Letter by a party to the Financing Letter or any termination of the Financing Letter. Parent shall keep the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company, upon its written request, copies of the definitive material documents related to the Financing (other terms than fee letters and conditions constitute Permitted any other documentation subject to confidentiality restrictions). Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Financing TermsLetter and/or substitute other debt or equity financing for all or any portion of the Financing from the same and/or alternative financing sources; provided, and AGCO shall not permit however, that any amendment such amendment, replacement, supplement or other modification to be made to, or any waiver of any provision under, of the Commitment Financing Letter that amends the Financing and/or substitution of all or any portion of the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver Financing shall not (A) with respect expand upon the conditions precedent or contingencies to the Commitment Letter or the Fee Letter or such definitive documents, Financing as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated set forth in the Commitment Financing Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new be reasonably expected to prevent or additional conditions impede or otherwise expands, amends or modifies any delay the consummation of the Merger, the Subsequent Merger and the other Transactions. Parent shall be permitted to reduce the amount of Financing under the Financing Letter in its reasonable discretion; provided, however, that Parent shall not reduce the Financing to an amount committed below the amount that is required, together with the financial resources of Parent, Merger Sub and the Company, including cash on hand and marketable securities, to consummate the Merger and the Subsequent Merger; provided, further, that such reduction shall not (1) expand upon the conditions precedent or contingencies to the Committed Financing, in a manner that would, Financing as set forth in the case of this subclause Financing Letter, or (B), 2) be reasonably be expected to (x) prevent or materially impede or delay the Closing or the availability consummation of the Committed Merger, the Subsequent Merger and the other Transactions. In the event that all conditions in the Financing Letter have been satisfied or, upon funding, will be satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the Lenders to fund on the Closing Date taking into account the expected timing Financing required to consummate the Merger, the Subsequent Merger and the other Transactions. In the event that Parent becomes aware of any event or circumstance that makes procurement of any portion of the Closing DateFinancing unlikely to occur in the manner or from the sources contemplated in the Financing Letter, taking into account Parent shall notify the expected timing Company and Parent and Merger Sub shall use their respective reasonable best efforts to 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 shall not be required to take any Burdensome Financing Action. For the avoidance of doubt, the syndication of any part of the Marketing Period, Financing in accordance with the terms of the Financing Letter shall not be deemed to violate Parent’s obligations under this Agreement. In the event that either Parent or (y) adversely impact the ability of AGCO Merger Sub commences an enforcement action to enforce its rights against under the other parties Financing Letter and/or cause the Lenders to fund the Commitment Letter in any material respect Financing (the terms of any such amendmentaction, modification a “Financing Action”), Parent or waiver not in violation Merger Sub shall (x) keep the Company reasonably informed of these clauses (A) the status of the Financing Action and (B)y) at the request of the Company, shall make Parent’s employees and Representatives (other than any of its investment bankers, financial advisors or Lenders) reasonably available to discuss the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions status of, and references material developments with respect to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedAction.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hewitt Associates Inc), Agreement and Plan of Merger (Aon Corp)
Financing. (a) Subject to the terms and conditions of this AgreementSection 6.15, AGCO Purchaser shall use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as practicable and in a timely fashion on the terms and conditions described in the Commitment Documents, including using its reasonable best efforts to (a) maintain in effect the commitment for the Financing set forth in the Commitment Letter Documents and comply with all covenants or agreements of Purchaser (and cause its Affiliates to comply with any covenant or agreement of any of its Affiliates) set forth in the Commitment Documents or any definitive documentation relating to the Financing, (b) negotiate and execute definitive agreements with respect thereto on the terms and conditions contemplated by the Commitment Documents (including any “flex” provisions flex terms in the Fee LetterCommitment Documents) and otherwise on terms acceptable to Purchaser and its Financing Sources, (c) satisfy or obtain a waiver of (and cause its Affiliates to satisfy or obtain such waiver), on a timely basis, all conditions applicable to Purchaser and its Affiliates in such other terms Commitment Documents and conditions the definitive agreements related thereto that are acceptable within its or its Affiliates’ control, (d) in the event that all conditions to AGCO so long the commitment of any counterparty to the Commitment Documents providing such Financing have been satisfied (or waived, as such other terms and conditions constitute Permitted applicable), consummate the Financing Termson or prior to the Closing Date, and AGCO (e) use commercially reasonable efforts to cause the lenders and the other Person(s) providing the Financing to fund when required hereunder the Financing required to consummate the Transaction. Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision under, or remedy under the Commitment Letter or Documents (except in compliance with the Fee Letter (or following entry into definitive documents relating to flex provisions of the Committed Financingfee letters as in effect as of the date hereof), such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), to an amount below the amount required, together with all other financial resources by Purchaser, to consummate the transactions contemplated hereby on the terms set forth in this Agreement, (ii) amends the existing, or (B) imposes new or additional additional, conditions or otherwise expands, amends or modifies any of the conditions precedent to the Committed Financing, in a manner that would, in the case of this subclause (B), iii) would reasonably be expected to (x) delay or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account or make the expected timing funding of the Closing DateFinancing less likely to occur, taking into account the expected timing of the Marketing Period(iv) imposes additional material obligations on Seller, or its Subsidiaries prior to the Closing Date or (yv) adversely impact the ability of AGCO Purchaser or any of its Affiliates, as applicable, to enforce its rights against the other parties to the Commitment Letter Documents or the definitive agreements with respect to the Financing (the amendments described in the foregoing clauses (i) through (v), “Prohibited Amendments”). Purchaser shall deliver to Seller true and complete copies of any material respect (amendment, modification, supplement, consent or waiver to or under any of the Commitment Documents or the definitive agreements relating to the Financing promptly upon execution thereof other than amendments or modifications solely for the purpose of joining additional arrangers or financing sources following the date hereof to the extent effected pursuant to the terms of the Notes Offering Commitment Letter or the Loan Agreement, as applicable. Purchaser shall keep Seller informed on a current basis and in reasonable detail of the status of its efforts to arrange, and of any such amendment, modification or waiver not in violation of these clauses (A) and (B)material developments concerning the timing of, the closing of the Financing. Purchaser shall give Seller notice (i) promptly after obtaining knowledge thereof, of any actual or likely material breach, violation, default, termination or repudiation by any party to any of the Commitment Documents or definitive documents related to the Financing, (ii) of its receipt of any written notice from any of its Financing Sources alleging a breach, violation default, termination or repudiation by any party to the Commitment Documents or any definitive document related to the Financing of any provisions of the Commitment Documents or any definitive document related to the Financing, (iii) the occurrence of an event or development that Purchaser expects to have a material and adverse impact on the ability of Purchaser to obtain all or any material portion of the Financing contemplated by the Commitment Documents, (iv) of any material dispute or disagreement between or among any parties to any of the Commitment Documents or any definitive document relating to the Financing with respect to the conditionality or amount of the Financing or the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (but excluding ordinary course negotiations) or (iv) otherwise, if the Financing contemplated by the Commitment Documents becomes unavailable on the terms and conditions (including any “Permitted flex” provisions) contemplated therein, in whole or in part, for any reason (each of the foregoing clauses, a “Financing TermsFailure Event”). As soon as reasonably practicable, but in any event within two Business Days of the date Seller delivers to Purchaser a written request, Purchaser shall provide to Seller any information reasonably requested by Seller relating to any Financing Failure Event. If any portion of the Financing becomes unavailable on the terms and conditions (including any applicable market flex provisions) contemplated by the Commitment Documents and alternative financing (so long as the terms thereof are of the type that would not constitute a Prohibited Amendment) is not then made available in an amount equal to such portion, and such portion is required to pay the Purchase Price on the terms and conditions contemplated by this Agreement and to pay Purchaser’s fees and expenses related thereto, Purchaser shall promptly notify Seller in writing and Purchaser shall use its reasonable best efforts to arrange and obtain in replacement thereof, and negotiate and enter into definitive agreements with respect to, alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions (including market flex provisions) not materially less favorable, taken as a whole, to Purchaser than the terms and conditions set forth in the Commitment Documents, as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period; provided, that subject in no event will the reasonable best efforts of Purchaser be deemed or construed to compliance with the other provisions require Purchaser to (A) pay fees materially in excess of this Section 7.15, AGCO may amend those contained in the Commitment Letter Documents (including the market flex provisions) or such definitive documents agree to correct typographical errors"market flex" terms, add additional lenders, arrangers and agents materially less favorable to Purchaser than the corresponding market flex terms contained in or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter Documents or (or definitive B) enter into any alternative financing documents related thereto) terms the terms of which are materially less favorable to Purchaser than the terms contained in the Commitment Documents on the date hereof (taken as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaceda whole).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc)
Financing. (a) Subject Buyer shall not agree to the terms and conditions any amendment, replacement, supplement or other modification of, or waive any of this Agreementits rights under, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter or any definitive agreements related to any Financing, in each case, without the prior written consent of the Seller; provided that the Buyer may amend, replace, supplement or otherwise modify or waive its rights under any Commitment Letter or definitive agreement related to any Financing (including any “flex” provisions replacement thereof in whole or in part with a high yield and/or high yield bridge financing) without the Fee Letter) or on such other terms and conditions that are acceptable to AGCO prior written consent of Seller so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, replacement, supplement, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces does not reduce the aggregate amount of the Committed Financing below an amount sufficient to consummate the transactions contemplated hereby and pay related fees and expenses, (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes does not impose new or additional conditions to the Financing that would be reasonably expected to delay or otherwise expands, amends or modifies any prevent the funding of the conditions to the Committed Financing, and (iii) does not adversely impact the ability of Buyer to timely consummate the transactions contemplated by this Agreement. Buyer shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable (in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Dateeach case, taking into account the expected timing of the Marketing Period) to consummate and obtain the Financing on the terms and conditions described in the Commitment Letters (as such terms may be modified or adjusted in accordance with the terms hereof or of, or and within the limits of, the “flex” provisions contained in any related fee letter), including (i) using reasonable efforts to (w) maintain in effect the Commitment Letters in accordance with the terms and subject to the conditions thereof, (x) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein, (y) adversely impact satisfy (or if deemed advisable by Buyer, seek waiver of) on a timely basis (taking into account the ability expected timing of AGCO the Marketing Period) all conditions applicable to Buyer that are within its control set forth in such definitive agreements and (z) upon satisfaction of such conditions, consummate the Financing; and (ii) use commercially reasonable efforts to enforce its rights against under the other parties Commitment Letters (provided that all conditions to Buyer’s obligations under this Agreement (except those to be satisfied at the Closing) have been satisfied or waived and the Marketing Period has ended). Buyer shall furnish correct and complete copies of all such definitive agreements to Seller promptly upon their execution. At Seller’s request, Buyer shall inform Seller in reasonable detail of the status of its efforts to obtain and consummate the Financing (including by providing substantially final draft agreements to the Commitment Letter in any material respect (the terms of extent reasonably requested). Upon any such amendment, replacement, supplement, modification or waiver not of any Commitment Letter in violation of these clauses accordance with this Section 5.18(a), (A) and (B), the term “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Nexstar Broadcasting Group Inc), Asset Purchase Agreement (Nexstar Broadcasting Group Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of AmSurg and Holdings shall, and shall cause its Subsidiaries to, use its reasonable best efforts to obtain the Committed Financing. Each of AmSurg and Holdings shall, and shall cause its Subsidiaries to, and cause its and their respective officers, employees and advisors (including legal and accounting representatives to), use its reasonable best efforts to cooperate in any manner that is reasonably requested by AmSurg or Holdings in order (A) to satisfy on a timely basis all conditions to funding set forth in the Debt Commitment Letter that are within AmSurg’s or Holdings’s control and to consummate the Financing at or prior to the Closing and (taking into account B) if any reductions thereof pursuant to Section 7.15(b)(A)) portion of the Financing becomes unavailable on the terms and conditions set forth in the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or flex provisions), to arrange to obtain alternative financing, including from alternative sources, on such other terms and conditions that are acceptable to AGCO so long as such other not materially less favorable than the terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountflex provisions) from that contemplated set forth in the Debt Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementLetter. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Financing” shall include mean the financing contemplated by the Debt Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) or required, as the case may be, to be amended, modified or replaced by this Section 5.16 and references to “Debt Commitment Letter” mean the executed commitment letter, fee letter and engagement letter dated as of the date hereof entered into by and among AmSurg and Envision Healthcare Corporation, a Delaware corporation (“Envision”), and the financial institutions party thereto (the “Lenders”) and shall include such document documents as permitted by this Section 7.15(a) permitted, or required, as the case may be, to be amended, modified or replacedreplaced by this Section 5.16.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Envision Healthcare Holdings, Inc.), Agreement and Plan of Merger (Amsurg Corp)
Financing. (a) Subject 4.5.1 Prior to the terms and conditions of this AgreementClosing, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsBuyer shall, and AGCO shall cause its Affiliates to, not permit any amendment or modification to be made to, or make or permit any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Credit Agreement if such amendment, modification or waiver (Aa) with respect reduces (or would reasonably be expected to have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Debt Financing (including by increasing available at the amount of fees Closing unless Buyer or its Affiliates otherwise have sufficient available resources to be paid or original issue discount unless perform the Committed Financing is increased by a corresponding amount or obligations required hereunder at the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Closing, or (Bb) imposes new or additional conditions or otherwise expands, amends or modifies any conditions, to the receipt of the Debt Financing, in the case of either clause (a) or (b) above, in a manner that would reasonably be expected to (i) materially delay or prevent or (ii) make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Committed Debt Financing) on or prior to the Closing Date. Prior to the Closing, in a manner Buyer shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that would, is reasonably likely to result in the case failure of this subclause any of the conditions contained in the Credit Agreement, except that Buyer may amend or replace the Credit Agreement so long as (B), x) such amendment does not impose terms or conditions that would reasonably be expected to (x) prevent or materially delay or prevent the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or and (y) adversely impact with respect to replacements, the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (replacement debt commitments satisfy the terms and conditions of any an Alternative Financing set forth below. In the event of such amendment, modification amendment or waiver not in violation replacement of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Credit Agreement as permitted by this Section 7.15(a) the proviso to the immediately preceding sentence, the financing under such amended or replaced debt commitment will be deemed to be amended“Debt Financing” as such term is used in this Agreement. During the Pre-Closing Period, modified Buyer shall not consummate or replaced and references enter into any definitive agreement to “Commitment Letter” shall include such document consummate any acquisition or other strategic transaction that requires Buyer to draw any funds available as permitted by this Section 7.15(a) of the date hereof under the Credit Agreement prior to Closing or that would result in the Debt Financing not being able to be amended, modified or replacedfunded at the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Aralez Pharmaceuticals Inc.), Asset Purchase Agreement (Aralez Pharmaceuticals Inc.)
Financing. (a) Subject to the terms Each of Parent and conditions Merger Sub shall, and shall cause each of this Agreementits respective controlled affiliates to, AGCO 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 and to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant on or prior to Section 7.15(b)(A)) the Acceptance Time on the terms and conditions set forth described in the Commitment Letter (including the exercise of any “market flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment amendment, supplement, modification or modification replacement to be made to, or any waiver of any provision or any of its rights under, the Commitment Letter or the Fee Letter Definitive Agreements without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or following entry into definitive documents relating to the Committed Financingdelayed), such definitive documents) if such amendment, modification supplement, modification, replacement or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate cash amount of proceeds of the Committed Debt Financing (including by increasing to an amount below the amount of fees (that when combined with the liquidity Parent then contemplates to be, and which is available to be, applied thereto) required to consummate the Offer, the Merger and the other transactions contemplated by this Agreement and to repay or refinance the debt contemplated to be paid or original issue discount unless the Committed Financing is increased replaced by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Letter, including the payment of all fees, premiums and expenses associated therewith, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or any contingencies or otherwise expandsexpands upon, amends amends, supplements or otherwise modifies any of the conditions to set forth in the Committed Financing, Commitment Letter on the date hereof in a manner that would, in the case of this subclause (B), would or would reasonably be expected to make a material portion of the Debt Financing less likely to be timely obtained (xor the conditions to obtaining the Debt Financing less likely to be timely satisfied), (iii) prevent prevents, materially impedes or materially delay delays the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing DateClosing, taking into account the expected timing of the Marketing Period, or (yiv) adversely impact impacts the ability of AGCO either Parent or Guarantor to enforce its rights against the any other parties to the Commitment Letter or the Definitive Agreements in any material respect or (v) materially adversely impacts the terms ability of Parent or Merger Sub to consummate the Offer at the Acceptance Time, the Merger at the Closing or any of the other transactions contemplated by this Agreement. For the avoidance of doubt, Parent and Merger Sub may amend, supplement, modify or replace the Commitment Letter and the Fee Letter, in each case as in effect at the date hereto, or the Definitive Agreements, but only if any such amendment, supplement, modification or replacement is not inconsistent with the immediately preceding sentence, (w) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Commitment Letter and the Fee Letter as of the date hereof, (x) to increase the amount of indebtedness, (y) to add or replace facilities with one or more new facilities or (z) otherwise in a manner not less favorable taken as a whole to Parent and Merger Sub. For purposes of this Agreement, (1) the term “Debt Financing” shall be deemed to include the Debt Financing, as amended, modified or replaced pursuant to this Section 5.2(a) and (2) the term “Commitment Letter” shall be deemed to include the Commitment Letter as it may be amended, supplemented, modified or replaced pursuant to this Section 5.2(a). Parent shall promptly deliver to the Company a true and complete copy of any such amendment, modification supplement, modification, replacement or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedDefinitive Agreements.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Valeant Pharmaceuticals International, Inc.), Agreement and Plan of Merger (Salix Pharmaceuticals LTD)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Merger Sub shall use its reasonable best efforts to (i) obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions described in the Financing Documents, (ii) maintain in effect the Financing Documents until the Transactions are consummated in accordance with their respective terms, (iii) satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Financing Documents applicable to Merger Sub, including paying when due all commitment fees and other fees arising under the Financing Documents as and when they become due and payable thereunder, and (iv) consummating the Financing at or prior to the Effective Time in accordance with the terms of the Financing Documents; provided that Merger Sub may amend or modify the Financing Documents, and/or elect to replace all or any portion of the Debt Financing or increase the amount of debt financing to be obtained with alternative debt financing subject only to such conditions to funding as are substantially similar, or are not less favorable in aggregate, from the standpoint of the Company and its shareholders (other than the holders of Excluded Shares and Continuing Shares), than the terms and conditions as set forth in the Commitment Letter Financing Documents as in effect on the date hereof (including the “Alternative Financing”), in each case only so long as (A) the aggregate proceeds of the Debt Financing (as amended or modified) and/or the Alternative Financing, together with the aggregate proceeds of the Equity Financing and an amount of Available Cash that equals or exceeds the Offshore Available Cash Amount, will be sufficient for Merger Sub and the Surviving Company to pay (i) the Merger Consideration, and (ii) any “flex” provisions other amounts required to be paid in connection with the Fee Letter) or on such other consummation of the Transactions upon the terms and conditions that are acceptable to AGCO so long as contemplated hereby and (B) such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter Alternative Financing would not (i) prevent, materially delay or following entry into definitive documents relating materially impede or impair the ability of Merger Sub to consummate the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), Transactions or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yii) adversely impact in any material respect the ability of AGCO Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter Letters or any definitive agreements with respect thereto. Without limiting the generality of the foregoing, Merger Sub shall not release or consent to the termination of the obligations of the financing sources under any Financing Documents or definitive agreement with respect thereto. Merger Sub shall promptly notify the Company as soon as it engages or participates in discussions or negotiations regarding the Alternative Financing and deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any material respect alternative sources have committed to provide the Alternative Financing (the “Alternative Financing Documents”) (except for customary engagement and fee letters) as promptly as practicable after execution thereof. In the event any portion of the Financing becomes unavailable on the terms of any such amendmentand conditions contemplated in the Financing Documents and to the extent is not replaced by the Alternative Financing, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Merger Sub shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and notify the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedCompany.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Yan Rick), Agreement and Plan of Merger (51job, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 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 to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter and the Debt Fee Letter (including any “flex” provisions in related thereto) on or prior to the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsClosing Date, and AGCO shall not permit will cause MIFSA to not, without the Company’s prior written consent, agree to any 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 (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing to an amount that, together with the Purchaser’s and its Affiliates’ cash on hand or available committed credit facilities, would be less than an amount of fees to that would be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund the cash payments required to consummate the transactions contemplated hereby, (ii) adds new (or expands or adversely changes any existing) conditions to obtaining the Financing unless such fees amendment, modification or original issue discount) from waiver results in conditions that contemplated are in the aggregate substantially equivalent to the conditions in the Debt Commitment Letter and the Debt Fee Letter immediately prior to such amendment, modification or such definitive documents waiver (other than in accordance with or that are more favorable to the Purchaser and its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), Affiliates) or (Biii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay or prevent the Closing or Closing, (B) make the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Financing) materially less likely to occur or (yC) materially adversely impact the ability of AGCO MIFSA or its Affiliates to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided, however, that Purchaser may cause MIFSA to amend or replace the Debt Commitment Letter or the Debt Fee Letter to (i) add 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) implement or exercise any “flex” provisions provided in any material the Debt Fee Letter as in effect on the date of this Agreement. Purchaser will cause MIFSA to use its reasonable best efforts to (I) maintain in effect the Debt Commitment Letter, (II) 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 Financing on the terms of and conditions contained in the Debt Commitment Letter or consistent in all material respects with the Debt Commitment Letter and the Debt Fee Letter (including any such amendment, modification or waiver not in violation of these clauses (A“flex” provisions contained therein) and (B)IV) draw a sufficient amount of the Financing to enable Purchaser to consummate the transactions contemplated hereby, in the “Permitted Financing Terms”); provided, event that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers conditions set forth in Sections 7.01 and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 7.02 and the definitions ofconditions to the availability 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 references to, 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 (x) any Committed Financing Sourcerepudiation, any Financing Source, references to “Committed Financing” shall include termination or breach of the financing contemplated by the Debt Commitment Letter by any party thereto, of which Purchaser becomes aware and (y) the occurrence of any other event or definitive financing documents related thereto) as permitted by this Section 7.15(a) development that would reasonably be expected to be amended, modified materially adversely impact the ability of Purchaser to obtain all or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedany portion of the Financing.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO GETCO 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 to arrange and obtain the Committed proceeds of the Financing (taking into account any reductions thereof pursuant including, if necessary to Section 7.15(b)(A)consummate the transactions contemplated hereby, the “bridge” loans contemplated in the Debt Commitment Letter) on the terms and conditions set forth in the Commitment Letter Financing Letters (including any “flex” provisions or on terms more favorable in the Fee Letteraggregate to GETCO), including the execution and delivery of all such instruments and documents as may be reasonably required thereunder. Without limiting the generality of the foregoing, GETCO shall: (i) or on such other use its reasonable best efforts to maintain in full force and effect the Financing Letters in accordance with the terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating subject to the Committed Financingconditions set forth therein; (ii) as promptly as practicable after the date of this Agreement, such use its reasonable best efforts to negotiate, execute and deliver the definitive documents) if such amendment, modification or waiver (A) agreements with respect to the Commitment Letter Debt Financing (the “Definitive Financing Agreements”) on the terms and conditions (including the “market flex” terms and conditions) contained in the Debt Financing Letters or on other terms more favorable in the Fee Letter or such definitive documentsaggregate to GETCO; provided, as applicablehowever, reduces that in no event shall any of the Definitive Financing Agreements: (A) reduce the aggregate amount of the Committed Debt Financing provided for in the Debt Financing Letters to an amount that is less than the aggregate amount of Debt Financing sufficient to consummate the transactions contemplated by this Agreement and make the payments referred to in Section 3.27; (B) expand the conditions or other contingencies to the receipt or funding of the Debt Financing beyond those expressly set forth in the Debt Financing Letters, amend or modify any of such conditions or other contingencies in a manner adverse to GETCO (including by increasing the amount of fees making any such conditions or other contingencies less likely to be paid satisfied) or original issue discount unless impose any new or additional condition or other contingency to the Committed Financing is increased by a corresponding amount receipt or funding of the Committed Financing is otherwise made available to fund such fees Debt Financing; or original issue discount(C) from that contemplated in the Commitment Letter or such definitive documents contain terms (other than in accordance with its those terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, expressly set forth in the case of this subclause (B), Debt Financing Letters) that would reasonably be expected to (x1) prevent or materially delay the Closing Effective Time or the availability of date on which the Committed Debt Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, would be obtained or (y2) adversely impact make the ability funding of AGCO Debt Financing less likely, in any material respect, to occur; (iii) pay in a timely manner any commitment or other fees that are or become due and payable under or with respect to the Debt Financing Letters on or following the date of this Agreement; (iv) use its reasonable best efforts to obtain all rating agency approvals necessary to obtain the Debt Financing and to satisfy all other conditions to obtaining the Debt Financing; and (v) enforce its rights against under the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 Letters and the definitions of, and references to, the Financing, any Committed Definitive Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedAgreements.
Appears in 2 contracts
Samples: Registration Rights Agreement (Knight Capital Group, Inc.), Voting and Support Agreement (GETCO Holding Company, LLC)
Financing. (a) Subject Unless, and to the terms extent, DigitalGlobe has sufficient cash from other sources available to satisfy its obligations under this Agreement and conditions for the Refinancing, from and after the execution of this Agreement, AGCO DigitalGlobe shall use its reasonable best efforts to obtain arrange the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any 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 Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification modification, replacement or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless except by operation of the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount“market flex” provisions) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of any portion of the Financing in a manner that would, in the case of this subclause (B), would or would reasonably be expected to (xA) delay or prevent or materially delay the Closing or the availability Closing Date or (B) make the satisfaction of the Committed conditions to obtaining the Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, materially less likely to occur or (yC) adversely impact the ability of AGCO DigitalGlobe to enforce its rights against the other parties to the Commitment Letter or the Definitive Agreements, in any material respect (the terms respect, including any right to seek specific performance of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents the Definitive Agreements. Subject to correct typographical errorsthe limitations set out in the first sentence of this Section 6.17(a), DigitalGlobe may amend, supplement, modify or replace the Commitment Letter as in effect at the date hereof (x) to add additional or replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities who had not executed the Commitment Letter as of the date of this Agreement, (y) to increase the amount of indebtedness and (z) to replace all or assign a portion of the facility committed under the Commitment Letter as in effect as of the date hereof with one or reassign titles more new facilities under such Commitment Letter or roles tounder any new commitment letter or facility (any such new commitment or facility, a “Replacement Facility”) in a manner not materially less beneficial to DigitalGlobe (as determined in the reasonable judgment of DigitalGlobe), provided that any amendments, modifications or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies replacements of any such amendment, modification or replacementReplacement Facility shall be subject to the same limitations that apply to the Commitment Letter as set forth in the first sentence of this Section 6.17(a). For purposes of this Section 7.15 and Section 5.6 and Agreement, (1) the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to term “Committed Financing” shall be deemed to include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced pursuant to this Section 6.17 (including any Replacement Facility, any Alternative Financing), and references to (2) the term “Commitment Letter” shall be deemed to include such document the Commitment Letter as may be permitted by this Section 7.15(a) to be amended, modified or replacedreplaced pursuant to this Section 6.17, any Replacement Facility, and any commitment letters with respect to the Alternative Financing and any related fee letters (it being understood that any Replacement Facility or Alternative Financing shall be subject to the terms herein that apply to the Commitment Letter).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Digitalglobe Inc), Agreement and Plan of Merger (GeoEye, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall Parent will use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange, timely obtain, maintain and enforce its rights in respect of the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsLetters, and AGCO shall will not permit any amendment and the requirements set forth above or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Letters if such amendment, supplement, modification or waiver would (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing, or (Bii) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions, to the receipt of the conditions to Financing, in the Committed Financingcase of either clause (i) or (ii) above, in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) delay (other than a de-minimus delay), impede (other than a de-minimus impediment) or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account (B) make the expected timing funding of the Marketing Period, Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur or (yC) adversely impact the ability of AGCO Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letters or the definitive agreements with respect thereto, the ability of Parent or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions; provided, however, that Parent and Merger Sub may (i) amend the Debt Commitment Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letters as of the date of this Agreement or (ii) otherwise amend or replace the Debt Commitment Letters so long as (v) such amendment or replacement do not impose terms or conditions that would reasonably be expected to delay, impede or prevent the Closing, (w) the terms are not, taken as a whole, less beneficial to Parent or Merger Sub, than those in the Debt Commitment Letters as in effect on the date of this Agreement or impose incremental conditions (or expand existing conditions) to funding thereunder as compared to the Debt Commitment Letters in effect as of the date hereof (x) adversely affects the ability of Parent to enforce its rights against other parties to the Commitment Letter or the Financing 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 Debt Commitment Letters and Fee Letter as in any material effect on the date hereof or in the definitive debt agreements, (y) reduce the aggregate amount of the Debt Financing and (z) with respect (to replacements, the replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. In the event of such amendment or replacement of the Debt Commitment Letters as permitted by the proviso to the immediately preceding sentence, the financing under such amended or replaced Debt Commitment Letters will be deemed to be “Financing” as such term is used in this Agreement. Parent will keep the Company reasonably informed of any such amendment, modification modification, supplement or waiver not replacement, including promptly providing copies of all such drafts and related final documentation. Parent will use its reasonable best efforts to (I) maintain in violation effect the Debt Commitment Letters (including any definitive agreements entered into in connection therewith), (II) satisfy on a timely basis (taking into account the Marketing Period) all conditions in the Financing Agreements applicable to Parent and Merger Sub to obtaining the Financing as promptly as practicable, (III) negotiate and enter into definitive agreements with respect to the Debt Commitment Letters on terms and conditions contained in the Debt Commitment Letters or consistent in all material respects with the Debt Commitment Letters as promptly as practicable (such definitive agreements, together with the Debt Commitment Letters, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of these clauses such definitive agreements to the Company, (IV) consummate the Financing at or prior to the Closing and (V) fully enforce the counterparties’ obligations and its rights under the Financing Agreements, including by suit or other appropriate proceeding to cause the lenders under the Financing to fund in accordance with their respective commitments if all conditions to funding the Financing in the applicable Financing Agreements have been satisfied 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 Financing and to satisfy the conditions thereof, including, upon Company’s reasonable request, (A) advising and updating the Company, in a reasonable level of detail, with respect to status, proposed Closing Date and terms of the Financing Agreements for the Financing and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble ) providing copies of the current drafts of all such Financing Agreements. If any such amendment, modification or replacement. For purposes portion of this Section 7.15 that amount of the Financing becomes reasonably likely to be unavailable on the terms and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing conditions contemplated by the Commitment Letter applicable Financing Agreements, (or definitive i) Parent will promptly notify the Company and (ii) Parent will use its reasonable best efforts to arrange and obtain alternative financing documents related theretofrom alternative sources in an amount sufficient to consummate the Transactions with terms and conditions not less favorable, taken as a whole, to Parent, Merger Sub and the Company than the terms and conditions set forth in the applicable Financing Agreements (“Alternative Financing”) as permitted by promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. In such event, (1) the term “Financing” will be deemed to include the Alternative Financing, (2) the term “Debt Commitment Letters” will be deemed to include any commitment letters, engagement letters and fee letters with respect to any such alternative debt financing and (3) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing. Notwithstanding anything contained in this Section 7.15(a5.13 or in any other provision of this Agreement, in no event will Parent or Merger Sub be required (i) to be amended, modified amend or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(awaive any of the terms or conditions hereof or (ii) to be amendedconsummate the Closing any earlier than the final day of the Marketing Period. For the avoidance of doubt, modified Parent will, directly or replacedindirectly, make all proceeds of the Debt Financing received by Parent available to Merger Sub as are required for Merger Sub to perform its obligations hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Eastman Chemical Co), Agreement and Plan of Merger (TAMINCO Corp)
Financing. (a) (i) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the Commitment Letter (including any “flex” provisions Financing Letters pursuant to the terms thereof and satisfy the conditions to the Financing as described in the Fee LetterFinancing Letters (including, without limitation, the repayment of any indebtedness to the extent such repayment is a condition to the Debt Financing) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Letters if such termination, amendment, modification modification, waiver or waiver replacement (A) with respect to reduces (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless (x) the Committed Debt Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available to fund such fees or original issue discountdiscount and (y) from that contemplated after giving effect to any of the transactions referred to in clause (x) above, the Commitment Letter or such definitive documents (other than representation and warranty set forth in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or 3.7 shall be true and correct)or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed receipt of Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent, Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Commitment Letter in any material Financing Letters or the definitive agreements with respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) thereto; provided that Parent and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Merger Sub may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party theretowho had not executed the Debt Commitment Letter as of the date hereof. AGCO Parent shall promptly deliver to Trimble the Company copies of any such termination, amendment, modification modification, waiver or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Abovenet Inc), Agreement and Plan of Merger (Zayo Group LLC)
Financing. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.18(d) hereof), AGCO Purchaser shall, and shall cause its Subsidiaries to, use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper and advisable to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the Commitment Letter Financing Letters and any related Fee Letter, including using reasonable best efforts to seek to enforce (including any “flex” provisions through litigation) its rights under the Financing Letters in the Fee Letter) event of a material breach by the counterparties thereto, and, without the consent of Clorox Parent (which shall not be unreasonably withheld or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsdelayed), and AGCO shall not permit any material amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Commitment Letter Financing Letters or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing Letters, or (Bii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Financing or other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account (y) make the expected timing timely funding of the Marketing PeriodFinancing or satisfaction of the conditions to obtaining the Financing less likely to occur, or (yz) adversely impact the ability of AGCO Purchaser to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification Financing Letters or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementFee Letter. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references toclarification, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” foregoing shall include not prohibit Purchaser from amending the financing contemplated by the Debt Commitment Letter and any related Fee Letter to (i) add or definitive financing documents related theretoreplace lender(s) (and Affiliates of such additional lender(s)) as permitted by a party thereto or (ii) make such other changes that would not, taken as a whole, adversely impact the ability of Purchaser to consummate the transactions contemplated hereby. Any reference in this Section 7.15(aAgreement to (A) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Armored AutoGroup Inc.), Purchase and Sale Agreement (Clorox Co /De/)
Financing. (a) Subject to Merger Partner shall, and shall cause the terms other members of the Merger Partner Group to, and conditions Spinco shall, and shall cause other members of this Agreementthe Spinco Group to, AGCO shall in each case, use its reasonable best efforts to obtain the Committed Financing as promptly as reasonably practicable after the date hereof on the same terms and conditions (taking into account any reductions including market flex) contained in the Commitment Letter. Merger Partner shall, and shall cause the other members of the Merger Partner Group to, and Spinco shall, and shall cause other members of the Spinco Group to, in each case, use reasonable best efforts (including, where practicable, on a joint basis or otherwise mutually agreed upon basis) to (i) comply with and maintain in full force and effect the Commitment Letter in accordance with the terms thereof pursuant to Section 7.15(b)(A)) and negotiate and execute definitive agreements with respect thereto, on the terms and conditions set forth (including market flex) contained in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO Merger Partner, Remainco and Spinco and the applicable Financing Sources so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall would not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect delay or prevent the Closing, (B) expand the conditions or other contingencies to the Commitment Letter or the Fee Letter or such definitive documentsfunding, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated those set forth in the Commitment Letter Letter, (C) reduce the committed amount, (D) adversely impact or such definitive documents delay in any respect the likelihood of the funding of the Financing (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any satisfaction of the conditions to obtaining the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yE) adversely impact the ability of AGCO Merger Partner or Spinco, as applicable, to enforce its rights against the other parties to the Commitment Letter or the definitive agreements with respect thereto (in any material respect each case, in accordance with their terms) (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B)definitive agreements, the “Permitted Financing TermsAgreements”)) or the ability of Merger Partner or Spinco, as applicable, to timely consummate the Contemplated Transactions and shall deliver to Merger Partner and Remainco, as applicable, copies of any and all drafts and proposed final versions of all documents prior to the execution thereof as promptly as reasonably practicable; provided, that subject to compliance with (ii) satisfy or cause the other provisions satisfaction of this Section 7.15, AGCO may amend all conditions in the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions Financing Agreements that are within its control or, if necessary or deemed advisable by Xxxxxx Partner, Remainco and Spinco, seek the waiver of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (International Game Technology PLC), Agreement and Plan of Merger (Everi Holdings Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall Parent 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 to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsLetters, and AGCO shall will not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Letters if such amendment, modification or waiver would (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing, or (Bii) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions, to the receipt of the conditions to the Committed Financing, in a manner that would, in the case of this subclause either clause (B), i) or (ii) above in a manner that would reasonably be expected to (xA) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of prevent the Closing Date, taking into account (B) make the expected timing funding of the Marketing Period, Financing (or satisfaction of the conditions to obtaining the Financing) materially less likely to occur or (yC) materially adversely impact the ability of AGCO Parent, Holdco or Merger Sub to enforce its rights against the other parties to the Financing Letters or the definitive agreements with respect thereto, the ability of Parent, Holdco or Merger Sub to consummate the Transactions or the likelihood of consummation of the Transactions; provided, however, that Parent, Holdco and Merger Sub may (i) amend the Debt Commitment Letter in any material respect to add 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 (x) such amendments do not impose terms or conditions that would reasonably be expected to materially delay or prevent the Closing, (y) the terms are not, taken as a whole, materially less beneficial to Parent, Holdco or Merger Sub, with respect to conditionality, 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 set forth below. Parent may enter into discussions regarding, and 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 Date, (iii) are not, taken as a whole, materially less beneficial to Parent, Holdco or Merger Sub, with respect to conditionality, than those in the Investment Agreement as in effect on the date of this Agreement and (iv) with respect to any such amendmentequity provider, modification such Equity Provider enters into an investment agreement on substantially the same terms and conditions as the Investment Agreement then in effect. Parent will use its reasonable best efforts to (I) maintain in effect the Financing Letters (including any definitive agreements entered into in connection with any such Financing Letters), (II) satisfy on a timely basis (taking into account the Marketing Period) all conditions in the Financing Agreements applicable to Parent, Holdco and Merger Sub to obtaining the Financing, (III) consummate the Equity Financing at or waiver not prior to the Closing, (IV) negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on terms and conditions contained in violation the Debt Commitment Letter or consistent in all material respects with the Debt Commitment Letter (such definitive agreements, together with the Financing Letters, the “Financing Agreements”) and promptly upon execution thereof provide complete executed copies of these clauses such definitive agreements to the Company, (V) consummate the Debt Financing at or prior to the Closing and (VI) fully enforce the counterparties’ obligations and its rights under the Financing Agreements, including by suit or other appropriate proceeding to cause the lenders under the Debt Financing and the equity investors under the Investment Agreement to fund in accordance with their respective commitments if all conditions to funding the Debt Financing and Equity Financing in the applicable Financing Agreements have been satisfied or waived. Parent will keep the Company reasonably informed on a timely basis of the status of Parent’s, Holdco’s and Merger Sub’s efforts to arrange the Financing and to satisfy the conditions thereof, including, upon Company’s reasonable request, (A) 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 Financing and (B), ) providing copies of the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions current drafts of this Section 7.15, AGCO may amend the Commitment Letter or all such definitive documents documentation. If any portion of that amount of the Financing necessary to correct typographical errors, add additional lenders, arrangers consummate the Transactions becomes unavailable on the material terms and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing conditions contemplated by the Commitment Letter applicable Financing Agreements, (or definitive i) Parent will promptly notify the Company and (ii) Parent will use its reasonable best efforts to arrange and obtain alternative financing documents related theretofrom alternative sources in an amount sufficient to consummate the Transactions with terms and conditions not materially less favorable, taken as a whole, to Parent, Holdco, Merger Sub and the Company than the terms and conditions set forth in the applicable Financing Agreements (“Alternative Financing”) as permitted by promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. In such event, (1) the term “Debt Financing” as used in this Section 7.15(aAgreement will be deemed to include any such alternative debt financing, (2) the term “Equity Financing” as used in this Agreement will be deemed to include any such alternative equity financing, (3) the term “Financing” will be amendeddeemed to include the Alternative Financing, modified or replaced and references to (4) the term “Debt Commitment Letter” shall will be deemed to include any commitment letters with respect to any such document as permitted by alternative debt financing, (5) the term “Investment Agreement” will be deemed to include any commitment letters with respect to the alternative equity financing and (6) the term “Financing Agreements” will be deemed to include any definitive agreement with respect to the Alternative Financing. Notwithstanding anything contained in this Section 7.15(a6.14 or in any other provision of this Agreement, in no event will Parent, Holdco or Merger Sub be required (i) to be amended, modified amend or replacedwaive any of the terms or conditions hereof or of the Financing Agreements or (ii) to consummate the Closing any earlier than the final day of the Marketing Period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Citadel Broadcasting Corp), Agreement and Plan of Merger (Cumulus Media Inc)
Financing. (a) Subject Purchaser has delivered to Seller true, correct and complete copies, as of the terms and conditions date of this Agreement, AGCO shall use its reasonable best efforts of (i) the executed Debt Commitment Letter and (ii) the executed Debt Fee Letter (redacted as to obtain fee amounts, pricing caps and other economic terms (including, for the Committed Financing (taking into account avoidance of doubt, any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions dollar amount or percentage set forth in the Commitment Letter (including flex terms) only, none of which would materially adversely affect the amount or availability of the Financing). As of the date of this Agreement, neither Purchaser nor any “flex” provisions in the Fee Letter) of its Affiliates has entered into any side letters or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating agreements related to the Committed Financing, such definitive documents) if such amendment, modification which would impose conditions or waiver (A) with respect other contingencies to the Commitment Letter or funding of the Fee Letter or such definitive documents, as applicable, reduces the aggregate full amount of the Committed Financing Financing. The Debt Commitment Letter and the Debt Fee Letter have not been amended or modified, except as permitted pursuant to Section 6.12. As of the date of this Agreement, the Debt Commitment Letter, in the form so delivered, is in full force and effect and is the legal, valid and binding obligation of Mallinckrodt International Finance S.A. (including “MIFSA”), an Affiliate of Purchaser, and, to the knowledge of Purchaser, the other parties thereto, in each case except as may be limited by increasing the amount bankruptcy, insolvency, reorganization, moratorium or other similar Laws relating to creditors’ rights generally or by general principles of equity. Purchaser or Purchaser’s ultimate parent has caused MIFSA to fully pay (or cause to be paid) any and all commitment fees or other fees that are required to be paid pursuant to the terms of the Debt Commitment Letter, any related engagement letter and the Debt Fee Letter on or original issue discount unless prior to the Committed Financing is increased by a corresponding amount or date of this Agreement. The net proceeds of the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than Financing, if funded in accordance with the Debt Commitment Letter, together with cash and cash equivalents available to Purchaser and its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Affiliates, or (B) imposes new or additional conditions or otherwise expandsincluding under its committed credit facilities, amends or modifies any of the conditions to the Committed Financing, in a manner that wouldshall, in the case aggregate, be sufficient to consummate the transactions contemplated by this Agreement upon the terms contemplated by this Agreement and the payment of all associated costs and expenses. As of the date of this subclause (B)Agreement, Purchaser has no reason to believe that MIFSA will be unable to satisfy any term or condition required to be satisfied by it as a condition to the availability of the Financing contained in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred that, with or without notice, lapse of time or both, would reasonably be expected to (x) prevent constitute a default or materially delay the Closing breach or the availability of the Committed Financing failure to satisfy a condition on the Closing Date taking into account part of MIFSA or, to the expected timing knowledge of the Closing DateMIFSA, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties thereto, under the Debt Commitment Letter. Except as set forth in the Debt Commitment Letter, there are no conditions precedent to the respective obligations of the financial institutions specified in the Debt Commitment Letter in any material respect (to fund the terms full amount of the Financing. Purchaser acknowledges and agrees that its obligations hereunder are not subject to the receipt or availability of any such amendment, modification funds or waiver not in violation financing by Purchaser or any of these clauses (A) and (B), its Affiliates for the “Permitted Financing Terms”); provided, that subject to compliance with consummation of the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing transactions contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedhereby.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mallinckrodt PLC)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Parent shall use its reasonable best efforts to obtain 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 prior to the Committed Closing Date, the Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) contemplated by the Debt Commitment Letter on the terms and conditions set forth in the Commitment Letter therein (including subject to any “flex” provisions applicable thereto), including by (i) maintaining in effect the Fee Debt Commitment Letter, (ii) or on such other negotiating and entering into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) consistent with the terms and conditions that are acceptable 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 and the Definitive Agreements. Parent shall comply with its obligations under the Debt Commitment Letter and Definitive Agreements in a timely and diligent manner. Parent shall keep the Company reasonably informed of material developments in respect of Parent’s efforts to AGCO so long as such other terms and conditions constitute Permitted Financing Termsarrange the Debt Financing. Prior to the Closing, and AGCO without the prior written consent of the Company, Parent shall not permit any amendment or modification to be made (A) agree to, or permit, any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or supplement of, or waiver (A) with respect to under, the Debt Commitment Letter or any Definitive Agreement to the Fee Letter extent such amendment, modification, supplement or such definitive documents, as applicable, reduces waiver would (i) reduce the aggregate amount of to be funded under the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees unless the Committed aggregate amount to be funded under the Debt Financing is increased by a corresponding amount an equivalent amount) unless Parent has sufficient cash on hand available), (ii) adds new (or adversely modifies any existing) any conditions to the Committed Financing is otherwise made available consummation of all or any portion of the Debt Financing, (iii) adversely affects the ability of Parent to fund such fees or original issue discount) from that contemplated in enforce its rights against other parties to the Debt Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash the Definitive Agreements as so amended, replaced, supplemented or otherwise in accordance with Section 7.15(b)(A))modified, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions relative to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent to enforce its rights against the other parties to the Debt Commitment Letter as in effect on the date hereof; or (iv) could otherwise reasonably be expected to prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement or (B) terminate any material respect (Debt Commitment Letter or any Definitive Agreement. Parent shall promptly deliver to the terms Company copies of any such amendment, modification or waiver not in violation of these clauses any Debt Commitment Letter. Notwithstanding the foregoing, (Ax) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Parent may amend the Debt Commitment Letter or such definitive documents solely to correct typographical errorsadd investors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments 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 assign or reassign titles or roles tosimilar entities, or between or among, any entities party thereto. AGCO shall promptly deliver if the addition of such additional parties and amendment of additional terms do not impact the aggregate amount of the Debt Financing to Trimble copies of any such amendment, modification or replacement. For purposes of be funded at the Closing and (y) in the event that Parent is required pursuant to this Section 7.15 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 information and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references thereafter Parent shall use its reasonable best efforts to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) cause such information to be amended, modified provided in a manner that would not reasonably be expected to waive the applicable privilege or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedprotection.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Investment Technology Group, Inc.), Agreement and Plan of Merger (Virtu Financial, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Parent shall not agree to or permit any amendment amendment, supplement or other modification to be made toof, or any waiver termination of, or waive any of any provision its rights under, the Commitment Letter Financing Letters, in each case, without the Company’s prior written consent (which consent shall not be unreasonably withheld or the Fee Letter (or following entry into definitive documents relating to the Committed Financingdelayed), such definitive documents) if such amendment, supplement, modification or waiver would, or would reasonably be expected to, (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Financing (Debt Financing, including by increasing changing the amount of fees to be paid or original issue discount unless payable pursuant to the Committed Financing Letters, below the Required Amount (after taking into account cash on hand of Parent and its Subsidiaries that is increased by a corresponding amount or reasonably expected to be available at the Committed Financing is otherwise made Closing to pay the Required Amount and other committed funds available to fund such fees Parent or original issue discount) from that contemplated any of its Subsidiaries with conditions to funding no more onerous than those conditions to funding contained in the Debt Commitment Letter or whereupon such definitive documents (other than committed funding source shall be deemed to also be “Debt Financing” and the documentation in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)respect thereof shall be deemed to be a “Financing Letter” and a “Debt Commitment Letter”), or (Bii) imposes impose new or additional conditions to the Debt Financing, or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, Debt Financing in a manner that would, would be more onerous than those conditions to funding contained in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing Debt Commitment Letter on the Closing Date taking into account the expected timing of the Closing Datedate hereof, taking into account the expected timing of the Marketing Period, or (yiii) adversely impact affect the ability of AGCO Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Debt Commitment Letter in any material or the definitive agreements with respect thereto or (iv) prevent or delay the terms consummation of the Debt Financing or the consummation of the Transactions. Upon any such amendment, supplement or other modification or waiver not of the Financing Letters in violation of these clauses (A) and (Baccordance with this Section 5.15(a), the terms “Permitted Financing TermsLetters”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Debt Commitment Letter” and/or “Fee Letters”, as applicable, shall include such document mean the Financing Letters, the Debt Commitment Letter and/or the Fee Letters, as permitted by this Section 7.15(a) to be the case may be, as so amended, modified supplemented or replacedmodified.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Regal Rexnord Corp), Agreement and Plan of Merger (Altra Industrial Motion Corp.)
Financing. (a) Subject Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Financing on the terms and subject only to the conditions (including the market flex provisions) set forth in the Commitment Letters, including using reasonable best efforts to (i) maintain in effect the Commitment Letters in accordance with the terms and subject to the conditions thereof and comply with its obligations under with the Commitment Letters and the definitive agreements relating to the Debt Financing (including the payment of this Agreementrelated fees and expenses in connection therewith as and when due and payable), AGCO shall use in each case, to the extent the failure to comply with such obligations would adversely impact the amount or availability of the Financing, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter or, if available, on other terms that (I) are acceptable to Buyer in its sole discretion, (II) will not adversely affect the ability of Buyer, from a conditionality and enforceability perspective (taken as a whole), to consummate the transactions contemplated hereby and (III) would otherwise be permitted by Section 4.6(b), (iii) satisfy on a timely basis all conditions applicable to, and within the control of, Buyer in the Commitment Letters and the definitive agreements related thereto, (iv) consummate the Financing at or prior to the Closing Date, including using its reasonable best efforts to obtain cause the Committed Sponsors, the lenders and any other Persons committing to fund the Financing to fund the Financing at the Closing and (taking into account any reductions thereof pursuant to Section 7.15(b)(A)v) on the terms and conditions set forth in enforce its rights under the Commitment Letter Letters and the definitive agreements relating to the Financing. Buyer shall not, without the prior written consent of PKI (including not to be unreasonably withheld), agree or consent to any “flex” provisions in the Fee Letter) termination of or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsamendment, and AGCO shall not permit any amendment supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Letter Letters or the Fee Letter (or following entry into definitive documents agreements relating to the Committed Financing, such definitive documents) Financing if such termination, amendment, supplement, modification or waiver would (A) with respect to reduce (or have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of any portion of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new impose additional or additional more burdensome conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions precedent to the Financing, or otherwise expand, amend or modify any other provision of the Commitment Letters in a manner that would reasonably be expected to delay, prevent or make less likely to occur the funding of the Financing (or satisfaction of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter in any material Letters or the definitive agreements with respect (to the terms Financing. Buyer shall deliver to PKI true and complete copies of any such amendment, modification modification, supplement, consent or waiver not in violation of these clauses (A) and (B), to or under any Commitment Letter or the “Permitted definitive agreements relating to the Financing Terms”)promptly upon execution thereof; provided, for the avoidance of doubt, that subject to compliance with the other provisions of this Section 7.15, AGCO Buyer may amend the Debt Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and arrangers, bookrunners, managers or agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and that did not execute the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Debt Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedof the Original Execution Date.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement (Perkinelmer Inc)
Financing. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 6.17(b) and Section 6.18), AGCO the Purchaser shall use its commercially reasonable best efforts to obtain the Committed Financing (taking into account the anticipated timing of the Marketing Period) to obtain the proceeds of the Debt Financing on terms and conditions (including the “flex” provisions) no less favorable to the Purchaser than those described in the Debt Financing Commitment and the Fee Letter (provided that the Purchaser may (A) amend, replace or modify the Debt Financing Commitment and any reductions thereof pursuant related Fee Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities and (B) subject to the limitations set forth in this Section 7.15(b)(A6.17, otherwise amend or modify, grant any waiver of any provision or remedy under, or replace, the Debt Financing Commitment), including using commercially reasonable efforts (taking into account the anticipated timing of the Marketing Period) on to (i) maintain in effect the Debt Financing Commitment in accordance with the terms and subject to the conditions thereof, (ii) satisfy on a timely basis (or obtain the waiver of) all conditions applicable to the Purchaser obtaining the Debt Financing at the Closing set forth in the Debt Financing Commitment Letter that are within the Purchaser’s control, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing on terms and conditions (including any “flex” provisions in provisions) no less favorable to the Purchaser than those contemplated by the Debt Financing Commitment and the Fee LetterLetter and (iv) upon the satisfaction of the conditions set forth in such definitive agreements, consummate the Debt Financing at Closing. Without limiting the generality of the foregoing, the Purchaser shall give the Seller prompt written notice, in any event within forty-eight (48) hours, of any actual or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted potential breach, default, expiration, termination or repudiation of any Debt Financing TermsCommitment or any definitive document related thereto by any party thereto of which the Purchaser becomes aware. The Purchaser shall not, and AGCO without the prior written consent of the Seller (which consent shall not permit be unreasonably withheld, delayed or conditioned), enter into any amendment or modification to be made to, or grant any waiver of any provision or remedy under, or replace, the Debt Financing Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (Ax) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing such that the aggregate funds that would be available to the Purchaser at the Closing (including taking into account other sources of funds available to the Purchaser) would not be sufficient to pay the Purchase Price and all other amounts contemplated by increasing the amount of fees this Agreement to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available it and to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with perform its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))obligations hereunder, or (By) imposes new or additional conditions conditions, or otherwise expands, amends or modifies any of the conditions conditions, to the Committed Financing, receipt of the Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xI) impede, prevent or materially delay the Closing or Closing, (II) make the availability funding of the Committed Debt Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing PeriodDebt Financing) materially less likely to occur, or (yIII) adversely impact affect the ability or likelihood of AGCO the Purchaser to enforce its rights against timely consummate the other parties transactions contemplated by this Agreement. Subject to the Commitment Letter in terms and conditions of this Agreement (including Section 6.18), if any material respect (portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Debt Financing Commitment and any Fee Letter (other than due to the failure of a condition to the consummation of the Debt Financing resulting from a breach of any such amendmentrepresentation, modification warranty, covenant or waiver not agreement of the Seller or the Company set forth in violation of these clauses (A) and (Bthis Agreement), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Purchaser shall promptly deliver notify the Seller, in any event within forty-eight (48) hours, and provide to Trimble the Sellers any information reasonably requested by the Seller related thereto and shall use its commercially reasonable efforts to arrange and obtain alternative financing from the same or alternative sources in an amount such that the aggregate funds that would be available to the Purchaser at the Closing will be sufficient to (i) pay the Purchase Price, and (ii) pay all other amounts contemplated by this Agreement to be paid by it and to perform its obligations hereunder, provided that the Purchaser shall not be required to arrange for or obtain any such alternative financing on terms and conditions (including any “flex” provisions) that are less favorable to the interests of the Purchaser than the terms contained in the Debt Financing Commitment and the Fee Letter. The Purchaser shall promptly provide the Seller with copies of all agreements pursuant to which the same or any such amendment, modification or replacementalternative source shall have committed to provide the Purchaser with any portion of the Debt Financing. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Debt Financing” shall include the financing Debt Financing contemplated by the Debt Financing Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a6.17(a) to be amended, modified or replaced, and references to “Debt Financing Commitment,” and “Fee Letter” shall include such documents as permitted by this Section 6.17(a) to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
Appears in 1 contract
Samples: Equity Purchase Agreement (Nci Building Systems Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Dana shall use use, and shall cause its Affiliates to use, its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and subject only to the conditions (including, to the extent required, the market flex provisions) set forth in the Debt Commitment Letter and the Fee Letter (or on other terms that, with respect to conditionality, enforceability, availability, termination or aggregate principal amount (below the Required Amount) of the Financing, are not less favorable in any material respect to Dana than the terms and conditions (including any market flex provisions) set forth in the Debt Commitment Letter), including using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms that, with respect to conditionality, enforceability, availability, termination or aggregate principal amount (below the Required Amount) of the Financing, are not less favorable in any material respect to Dana than the terms and conditions (including the market flex provisions) set forth in the Debt Commitment Letter), (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis all conditions applicable to it and its Affiliates in the Debt Commitment Letter and the definitive agreements relating to the Financing that are acceptable within its control (or, if deemed advisable by Dana, seek the waiver of conditions applicable to AGCO so long as such other terms and conditions constitute Permitted Dana contained in the Debt Commitment Letter or the definitive agreements relating to the Financing), (iv) consummate the Financing Termsat or prior to the Closing Date, including using, and AGCO causing its Affiliates to use, its reasonable best efforts to cause the Financing Sources to fund the Financing at the Closing, and (v) comply with its covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Financing. Subject to the terms of this Agreement, Dana shall not not, without the prior written consent of GKN, (A) terminate the Debt Commitment Letter or any definitive agreement relating to the Financing, unless such Debt Commitment Letter or definitive agreement is replaced in a manner consistent with the following clause (B), or (B) agree to or permit any amendment or modification to be made to, or grant any waiver of any provision under, the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents agreements relating to the Committed Financing, such definitive documents) if Financing unless such amendment, modification or waiver would not (A1) with respect reduce (or could reasonably be expected to have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing (including by increasing to an amount below the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), Required Amount or (B2) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, or otherwise expand, amend or modify any other provision of the Debt Commitment Letter in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability prevent funding of the Committed Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y3) adversely impact affect the ability of AGCO Dana to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements relating to the Financing (it being understood that Dana may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or other similar entities who had not executed the Debt Commitment Letter as of the date of this Agreement; provided that no Financing Source under the Debt Commitment Letter shall be relieved, released or novated (prior to the full funding of such Financing Source’s portion of the Financing) for any part of its commitments by virtue of such addition unless consented to in any material respect (writing by GKN, other than in accordance with the terms Debt Commitment Letter). Dana shall promptly deliver to GKN copies of any such amendment, modification or waiver not in violation of these clauses (A) and (B), to or under the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Debt Commitment Letter or such any definitive documents agreement relating to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies the Financing entered into in accordance with this Section 8.10 (including as a result of the exercise of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedmarket flex provisions contained therein).
Appears in 1 contract
Financing. (a) Subject Parent and Merger Sub shall (i) 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 or advisable to arrange and obtain the Financing as promptly as practicable, including using reasonable best efforts to (A) satisfy on a timely basis (or obtain the waiver of) all conditions precedent applicable to Parent and Merger Sub in the Commitment Letters and such definitive agreements to be entered into pursuant to the Commitment Letters that are within the control of Parent and Merger Sub, (B) negotiate and enter into definitive agreements with respect thereto consistent with the terms and conditions contained in the Commitment Letters or on other terms not materially less favorable, in the aggregate (or with respect to conditionality of this Agreementfunding on the Closing Date, AGCO shall use its reasonable best efforts at all), to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on Parent and Merger Sub than the terms and conditions (including the “market flex” provisions, if any) contemplated by the Commitment Letters, and (C) if all of the conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsArticle 7 have been satisfied or, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financingextent permitted hereunder, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents waived (other than in accordance with its terms or unless concurrently replaced those that by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))their nature can only be satisfied on the Closing Date, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions but subject to the Committed Financing, in a manner that would, in the case satisfaction of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing such conditions on the Closing Date taking into account or waiver by the expected timing party entitled to waive such conditions), (1) cause the funding of the Financing at or prior to the Closing Datein an amount sufficient to pay the Aggregate Consideration and to consummate the Transactions, taking into account the expected timing of the Marketing Period, or and (y2) adversely impact the ability of AGCO to otherwise diligently and in good faith fully enforce its rights against and the other obligations of such party or parties to under the Commitment Letter Letters, (ii) maintain in any material respect (effect the terms Commitment Letters until the consummation of any such amendmentthe Transactions, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance iii) comply with the other provisions of this Section 7.15, AGCO may amend their obligations under the Commitment Letter or Letters. At the request of the Company, each of Parent and Merger Sub shall provide the Company with such definitive documents information and documentation as shall be reasonably requested by the Company to correct typographical errors, add additional lenders, arrangers allow the Company to monitor the progress of the Financing and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver Parent’s efforts to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, arrange the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Heritage-Crystal Clean, Inc.)
Financing. (a1) Subject to the terms and conditions of this Agreement, AGCO The 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 to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) described in the Financing Letters on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letterflex provisions) or on such other terms described therein and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsshall not, and AGCO shall not without the consent of the Company, permit any amendment or modification to be made to, or any waiver of any provision underor remedy under the Financing Letters, the Commitment Letter that imposes new or the Fee Letter additional conditions, in each case that, would reasonably be expected to (or following entry into definitive documents relating to the Committed Financing, such definitive documentsI) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount of the Debt Financing (except as set forth in any “flex” terms) unless the Committed Equity Financing is increased by a corresponding amount or from alternative financing to the Committed Financing is otherwise made available extent required or permitted pursuant to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with this Section 7.15(b)(A)4.6), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (xII) prevent or materially delay the Closing or the availability of the Committed Financing or (III) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) materially less likely to occur (it being understood and agreed that the Purchaser may amend the Debt Commitment Letter to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Commitment Letter as of the date of this Agreement). Without limiting the foregoing, the Purchaser shall use its reasonable best efforts (i) to maintain in effect the Financing Letters until the consummation of the transactions contemplated hereby, (ii) to negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the Closing Date taking into account terms and conditions (including the expected timing flex provisions) contained in the Debt Commitment Letter (or on terms no less favorable to the Purchaser than the terms and conditions (including flex provisions) in the Debt Commitment Letter) and, for greater certainty, such terms shall not include conditions in favour of the Closing DateFinancing Source Parties in addition to those in the Debt Commitment Letter, (iii) to satisfy (or obtain waivers to) on a timely basis (taking into account the expected timing of the Marketing Period) all conditions applicable to the Purchaser to funding in the Debt Commitment Letter at the Closing that are within its control and in the Equity Commitment Letter and to consummate the Financing at or prior to the Closing and (iv) subject to the satisfaction or waiver of the conditions set forth in the Financing Letters (other than the condition in Section 6 of Schedule D to the Debt Commitment Letter to make the Equity Contribution (as defined in the Debt Commitment Letter) and the conditions that, or (y) adversely impact by their terms, cannot be satisfied until the ability Effective Date), at the time when the Closing would have occurred but for the failure of AGCO the Financing to be funded, to seek to enforce its rights against under the Financing Letters, including using its reasonable best efforts to cause the lenders and the other parties Persons committed to fund the Commitment Letter in any material respect Financing to fund the Financing (or such lesser amount as may be required to consummate the terms transactions contemplated hereby) at the Closing. Without limiting the generality of the foregoing, the Purchaser shall give the Company prompt notice (x) of any such amendmentbreach or default by any party to any of the Financing Letters and any definitive agreements with respect thereto of which the Purchaser becomes aware, modification or waiver not in violation (y) of these clauses the receipt of (A) and any written notice or (B) other written communication, in each case from any Financing Source Party in the case of the Debt Commitment Letter or any of JLL Holdco, JLL Partners Fund VI, L.P., JLL Partners Fund V, L.P. and JLL Associates V (Patheon), L.P. in the “Permitted case of the Equity Commitment Letter, with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Terms”)Letters and any definitive agreements with respect thereto or any material provisions of the Financing Letters and any definitive agreements with respect thereto or (2) dispute or disagreement between or among any parties to any of the Financing Letters with respect to the obligation to fund the Financing or the amount of the Financing to be funded at Closing, in each case which would make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) materially less likely to occur; provided, that in no event will the Purchaser be under any obligation to disclose any information that is subject to compliance any applicable legal privileges (including the attorney-client privilege)). Upon the occurrence of any circumstance referred to in clause (x) or (y)(A) of the immediately preceding sentence which would make any portion of the Debt Financing unavailable, and such portion is reasonably required to fund the aggregate Share Consideration and all fees, expenses and other amounts contemplated to be paid by the Purchaser pursuant to this Agreement, the Purchaser shall use its reasonable best efforts to arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to consummate the transactions contemplated by this Agreement on terms and conditions not less favorable, and with financing sources reasonably acceptable, to the other provisions Purchaser than the terms set forth in the Debt Commitment Letter as promptly as reasonably practicable following the occurrence of such event. Notwithstanding anything to the contrary contained herein, in no event shall the Purchaser be required pursuant to this Section 7.15Agreement to agree to pay to the lenders providing the Debt Financing any additional fees or to increase any interest rates applicable to the Debt Financing, AGCO may amend except as expressly required pursuant to the Debt Commitment Letter in existence as of the date hereof or in any fee letter referenced therein (including any market flex terms thereof) or related thereto and the Purchaser shall not be required to consummate the Debt Financing until the final day of the Marketing Period. The Purchaser shall furnish the Company with complete, correct and executed copies of the Debt Commitment Letter or such definitive documents any alternative financing agreement promptly upon their execution, and upon request will provide the Company with drafts of the Offering Documents (which drafts may omit any Description of Notes to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 be included therein) and the definitions of, and references to, Required DPP Information forthwith following the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated receipt thereof by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedPurchaser.
Appears in 1 contract
Samples: Arrangement Agreement (Patheon Inc)
Financing. (a) Subject Prior to the terms Closing, Buyer shall use, and conditions of this Agreementshall cause its Affiliates to use, AGCO 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 and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms (including the market flex provisions set forth in the Fee Letters) and subject only to the conditions set forth in the Commitment Letter Documentation, including using reasonable best efforts to (i) maintain in effect and comply with the Commitment Documentation, (ii) negotiate and enter into definitive agreements with respect to the Financing on the terms (including any “flex” the market flex provisions set forth in the Fee LetterLetters) and subject only to the conditions set forth in the Commitment Documentation, (iii) satisfy (and cause its controlled Affiliates to satisfy) on a timely basis all conditions applicable to Buyer in the Commitment Documentation and the definitive agreements related thereto, (iv) consummate the Financing at or on such other terms prior to the Closing Date, (v) enforce its right under the Commitment Documentation and conditions that are acceptable the definitive agreements relating to AGCO so long as such other terms and conditions constitute Permitted Financing Termsthe Financing, and AGCO (vi) comply with its covenants and other obligations under the Commitment Documentation and the definitive agreements relating to the Financing. Buyer shall not, and shall not permit any of its controlled Affiliates to, take any action not otherwise required under this Agreement that is a breach of, or would result in termination of or reduction in the commitments with respect to, the Commitment Documentation, except as otherwise contemplated thereby. Buyer shall not, without the prior written consent of Parent, agree to or permit any termination of or amendment, restatement, amendment and restatement, supplement or modification to be made to, or grant any waiver of any provision under, the Commitment Letter Documentation or the Fee Letter (or following entry into definitive documents agreements relating to the Committed Financing, such definitive documents) Financing if such termination, amendment, restatement, supplement, modification or waiver would be reasonably likely to: (A) with respect to reduce (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of any portion of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount discount) unless the Committed Financing an alternative source of financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund amount, so long as such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its alternative source of financing does not include terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or conditions that would constitute a Prohibited Amendment (Bdefined below) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause under clauses (B), reasonably be expected to (xC) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or and (yD) below; (B) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter Documentation or the definitive agreements with respect to the Financing; (C) impose new or additional conditions precedent to the availability of the full amount of the Financing or otherwise amend, modify or expand any of the conditions precedent to the Financing, or otherwise amend any other provision of the Commitment Documentation in any material respect a manner that could reasonably be expected to delay or prevent or make less likely to occur the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (D) prevent, delay or impede the Closing or the date on which the Financing would be obtained (the terms of any such amendment, modification or waiver not amendments described in violation of these the foregoing clauses (A) and ), (B), (C) and (D), the “Permitted Financing TermsProhibited Amendments”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Buyer may amend the Debt Commitment Letter or such definitive documents solely to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or entities in similar roles to, or between or among, any entities party theretowho are not parties to such letters as of the date hereof. AGCO Buyer shall promptly deliver to Trimble Parent true and complete copies of any such amendment, modification modification, supplement, consent or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references waiver to “Committed Financing” shall include the financing contemplated by or under the Commitment Letter Documentation or the definitive agreements relating to the Financing promptly upon execution thereof other than (1) amendments or definitive modifications solely for the purpose of joining additional arrangers or financing documents related theretosources following the date hereof to the extent effected pursuant to the terms of the Commitment Documentation or (2) as permitted by this Section 7.15(a) amendments or modifications to be amended, modified or replaced and references to “Commitment the terms that have been redacted in the Fee Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Campbell Soup Co)
Financing. (a) Subject Each of Parent, Intermediate Sub and Merger Sub shall use their respective reasonable best efforts to complete the Debt Financing on the terms and conditions of this Agreementdescribed in the Debt Financing Commitments as promptly as practicable but in any event on or before the Outside Date, AGCO shall use its including using their respective reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)i) negotiate definitive agreements with respect thereto (A) on the terms and conditions set forth contained in the Commitment Letter Debt Financing Commitments or (including any “flex” provisions in the Fee LetterB) or on such other terms and conditions that are acceptable to AGCO so long as such (x) do not impose any conditions other terms and conditions constitute Permitted than those set forth in the Debt Financing TermsCommitments (the “Debt Financing Conditions”), or adversely change in any material respect any Debt Financing Condition, and AGCO shall (y) would not reasonably be expected to prevent, materially delay or materially impair the ability of Parent, Intermediate Sub or Merger Sub to consummate the Transactions on or before the Outside Date, (ii) satisfy on a timely basis all conditions applicable to Parent, Intermediate Sub 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 of, any material provision underor remedy under the Debt Financing Commitments, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes any new or additional conditions or otherwise expands, amends adversely changes in any material respect any Debt Financing Condition or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), ) would reasonably be expected to (x) prevent prevent, materially delay or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact impair the ability of AGCO Parent, Intermediate Sub or Merger Sub to enforce its rights against consummate the other parties to Transactions on or before the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedOutside Date.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Grizzly shall not permit agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Spinco Commitment Letter or and the Fee Spinco Related Letter without the prior written consent of Burgundy (or following entry into definitive documents relating and, to the Committed Financingextent Section 8.3 is applicable, such definitive documents) consent is subject to Burgundy’s obligations in Section 8.3), if such amendmentamendments, modification modifications or waiver waivers would reasonably be expected to (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Spinco Financing below the Below Basis Amount, (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expands, amends or modifies any to the receipt of the conditions to the Committed Financing, in a manner Spinco Financing that would, in the case of this subclause (B), would reasonably be expected to (xA) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially delay the Closing consummation of the transactions contemplated by this Agreement and 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 Committed 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 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 to arrange and obtain the Spinco Financing on the Closing Date taking into account terms and conditions described in or contemplated by the expected timing of Spinco Commitment Letter and the Closing DateSpinco Related Letter, including using reasonable best efforts to (1) maintain in effect the 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 Spinco Commitment Letter and the Spinco Related Letter and otherwise comply with its obligations thereunder, (3) enter into definitive agreements substantially concurrently with the Closing with respect thereto (the “Spinco Debt Financing Agreements”) on the terms and conditions contemplated by the Spinco Commitment Letter and the Spinco Related Letter (or terms and conditions (including the flex provisions) no less favorable to Grizzly and Spinco (in the reasonable discretion of Grizzly) than the terms and conditions in the Spinco Commitment Letter and the Spinco Related Letter), (4) in the event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, consummate the Spinco Financing at or prior to Closing, (5) enforce its rights under the Spinco Commitment Letter and the Spinco Related Letter and (6) in the event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, 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 Agreements, (y) adversely impact the ability give Burgundy prompt notice of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (breach by any party of the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend 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, otherwise keep Burgundy reasonably informed of the status of Grizzly’s efforts to arrange the Spinco Financing (or any replacement thereof) and 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 arrange 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 Spinco (in the reasonable discretion of Grizzly) than those in the Spinco Commitment Letter and the Spinco Related Letter as promptly as practicable following the occurrence of such event, including using reasonable best efforts to enter into definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party agreements with respect thereto. AGCO Further, Grizzly may, with the prior written consent of Burgundy (which consent shall promptly deliver to Trimble copies of any not be unreasonably withheld, conditioned or delayed), if it so determines in its discretion, arrange for alternative financing for the Spinco Financing from a third party or parties (and, in such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Sourceinstance, references herein to the “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Spinco Commitment Letter” shall mean and include the written commitment of such document as permitted by this Section 7.15(athird party or parties in respect thereof), if such alternative financing does not (i) to be amended, modified or replaced.reduce the aggregate amount of the Spinco Financing below the Below Basis Amount,
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO The 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 to consummate, and obtain the Committed proceeds of, the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter Letters (including any “flex” flex provisions applicable thereto), including using reasonable best efforts to (i) maintain in effect the Fee LetterCommitment Letters; (ii) or on such other negotiate definitive agreements with respect to the Debt Financing consistent with the terms and conditions that are acceptable to AGCO so long as such contained therein or on other terms (including any flex provisions applicable thereto), no less favorable to the Seller (including with respect to the conditionality thereof and the amount of proceeds thereunder), that would not prevent, impede, delay or reasonably be expected to adversely impact the ability of the Buyer to consummate the transactions contemplated hereby (including, for the avoidance of doubt, documents and agreements relating to the consummation of the transactions contemplated by Section 2.2(b) hereof) (any such agreements, the “Financing Definitive Agreements”) and deliver to the Seller a complete, correct and executed copy thereof as promptly as practicable after execution thereof; (iii) satisfy on a timely basis all conditions constitute Permitted applicable to the Buyer in the Commitment Letters or the Financing TermsDefinitive Agreements; (iv) upon the satisfaction or waiver of the conditions contemplated by the Commitment Letters, consummate the Financing on or prior to the Closing Date; and AGCO (v) enforce its rights under the Commitment Letters in the event of a breach by the Financing sources. The Buyer shall not, without the prior written consent of the Seller, which consent shall not be unreasonably withheld, (x) permit any amendment amendment, replacement, supplement or modification to be made to, or any waiver of any provision or remedy under, the Commitment Letter Letters or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Definitive Agreements if such amendment, modification modification, waiver or waiver remedy (A) with respect adds new (or modifies, in a manner adverse to the Commitment Letter Buyer, any existing) conditions or contingencies to the consummation of the Financing, (B) reduces the amount thereof below the amount required to consummate the transactions contemplated hereby, (C) adversely impacts the ability of the Buyer or the Fee Letter or such definitive documentsSeller, as applicable, reduces to enforce its rights against other parties to the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount Commitment Letters or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash Definitive Agreements or otherwise in accordance with Section 7.15(b)(A))materially and adversely impacts the Seller, or (BD) imposes new is reasonably likely to prevent, impede or additional conditions or otherwise expands, amends or modifies any delay the consummation of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Periodtransactions contemplated hereby, or (y) adversely impact terminate or, to the ability extent within its control, permit termination of AGCO any of the Commitment Letters or the Financing Definitive Agreements. For the avoidance of doubt, nothing herein shall prevent the Buyer from replacing or amending the Debt Commitment Letter in order to enforce add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof; provided, that such addition does not, without the Seller’s consent, release any Financing source from its rights against commitment to provide any portion of the Financing unless a replacement Financing source set forth on Section 5.3(a) of the Disclosure Schedule, or any other Financing source of equal or greater creditworthiness, commits to provide such portion of the Financing on terms and conditions materially no less favorable to the Seller. The Buyer shall (I) give the Seller prompt notice of any breach or default by any party to the Commitment Letters, the Financing Definitive Agreements or any alternative debt financing of which the Buyer has become aware, any purported termination or repudiation by any party of the Commitment Letters or the Financing Definitive Agreements of which the Buyer has become aware or upon receipt of notice of any material dispute or disagreement between or among the parties to the Commitment Letter in Letters, the Financing Definitive Agreements or any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) alternative debt financing and (B), II) otherwise keep the “Permitted Seller reasonably informed of the status of the Buyer’s efforts to arrange the Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedreplacement thereof).
Appears in 1 contract
Samples: Share Purchase Agreement (Stratus Technologies Bermuda Holdings Ltd.)
Financing. (a) Subject to the terms The Company shall, and conditions of this Agreementshall cause its Subsidiaries to, AGCO and shall use its reasonable best efforts to obtain cause its and their respective Representatives to, provide all cooperation that is necessary, customary or advisable and reasonably requested by Parent to assist Parent in the Committed arrangement of any third-party debt or equity financing for the purpose of financing the aggregate Merger Consideration, any repayment or refinancing of debt contemplated by this Agreement or required or undertaken in connection with the transactions contemplated by this Agreement and any other amounts required to be paid in connection with the consummation of the transactions contemplated by this Agreement (including all amounts payable in respect of equity awards of the Company under this Agreement) and all related fees and expenses of Parent and Merger Subsidiary (the “Financing”) (it being understood that the receipt of such Financing is not a condition to the Merger); provided, however, that nothing in this Section 8.12(a) shall require such cooperation to the extent it would (taking into account i) unreasonably disrupt the conduct of the business or operations of the Company or its Subsidiaries, (ii) require the Company or any reductions thereof pursuant of its Subsidiaries to Section 7.15(b)(Aagree to pay any fees, reimburse any expenses or otherwise incur any liability (including Tax Liability, by way of withholding, reduction in Tax attribute or otherwise) or give any indemnities or place a Lien on any of its assets prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified or (iii) require the Company or any of its Subsidiaries to take any action that would reasonably be expected to conflict with, or result in any violation or breach of, or default (with or without notice or lapse of time, or both) under, the Company Articles or bylaws of the Company (as in effect as of the date hereof)) , any Applicable Law, the JPM Credit Agreement (as in effect on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letterdate hereof) or on such other terms and conditions that are acceptable to AGCO any Material Contract (so long as such other terms and conditions constitute Permitted Financing Termsthe provisions of the Material Contracts were not entered into with the purpose of avoiding the provisions of this Section 8.12). Such cooperation shall include, and AGCO shall not permit any amendment or modification to be made towithout limitation, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) participating in a reasonable number of meetings, presentations and due diligence sessions (including the participation in such meetings, presentations and due diligence sessions of the Company’s senior management); (B) providing reasonable and timely assistance with respect the preparation of materials for presentations, offering memoranda, prospectuses and similar documents required in connection with the Financing; (C) furnishing the report of the Company’s auditor on the most recent audited consolidated financial statements of the Company and its Subsidiaries and using its reasonable best efforts to obtain the consent of such auditor to the Commitment Letter use of such report in accordance with normal custom and practice and using reasonable best efforts to cause such auditor to provide customary comfort letters to the underwriters, initial purchasers or the Fee Letter or such definitive documentsplacement agents, as applicable, reduces in connection with the aggregate amount of the Committed Financing Financing; (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountD) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with as promptly as reasonably practicable furnishing Parent and its terms or unless concurrently replaced by commitments from other financing sources with (1) audited consolidated balance sheets and related consolidated statements of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)operations, comprehensive income (loss), equity and cash flows for the Company for the fiscal years ended December 31, 2013, 2014 and 2015 and any other fiscal year ended on or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions prior to the Committed Financing, in a manner date that would, in the case of this subclause is at least sixty (B), reasonably be expected to (x60) prevent or materially delay the Closing or the availability of the Committed Financing on days before the Closing Date taking into account and (2) unaudited consolidated balance sheets and related statements of operations, comprehensive income (loss) and cash flows for the expected timing of Company for the fiscal quarter ended March 31, 2016 and each subsequent fiscal quarter ended on a date that is not a fiscal year end and that is at least forty (40) days before the Closing Date, taking into account in each case prepared in accordance with GAAP; and (E) furnishing any additional financial statements, schedules or other financial data relating to the expected timing Company and its Subsidiaries as reasonably requested by Parent (including such information as is necessary to enable Parent to prepare any pro forma financial statements required pursuant to the 1933 Act in connection with any such 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 Marketing PeriodCompany’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 pursuant to this Section 8.12(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 (y) adversely impact expenses suffered or incurred by any of them in connection with the ability arrangement of AGCO the Financing and any information used in connection therewith, except with respect to enforce any information provided by the Company or any of its rights against the other parties Subsidiaries or any fraud or intentional misrepresentation, willful misconduct or material breach of this Agreement by any such Persons. Notwithstanding anything to the Commitment Letter contrary set forth herein or in any material respect the Confidentiality Agreement, Parent and its Subsidiaries shall be permitted to disclose information about the Company and its Subsidiaries (including information otherwise subject to the terms of any such amendment, modification or waiver not the Confidentiality Agreement) as necessary and consistent with customary practices in violation of these clauses (A) and (B), connection with the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedcustomary confidentiality arrangements in connection therewith.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall, and shall cause each of its Affiliates to, use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as soon as practicable after the date hereof on the terms and conditions described in the Financing Commitments (including the flex provisions), including using its reasonable best efforts to (i) comply with its obligations under the applicable Financing Commitments, (ii) maintain in effect the applicable Financing Commitments, (iii) negotiate and enter into definitive agreements with respect to the applicable Financing Commitments as promptly as practicable on terms and conditions (including the flex provisions) contained therein or otherwise not materially less favorable to Buyer in the aggregate than those contained in the applicable Financing Commitments, (iv) satisfy on a timely basis (taking into account the Marketing Period) all conditions applicable to Buyer contained in the applicable Financing Commitments (or any definitive agreements related thereto) within Buyer’s control, including the payment of any commitment, engagement or placement fee required as a condition to the Financing and punctual compliance with the terms, including with respect to payment of principal, interest and fees, of Buyer’s existing credit agreement and (v) upon satisfaction of such conditions, and the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions that by their nature are to be satisfied at the Commitment Letter Closing, but subject to the satisfaction or waiver of such conditions), enforce all of its rights under the applicable Financing Commitments (including or any “flex” provisions definitive agreements related thereto) and consummate the applicable Financing on a timely basis (taking into account the Marketing Period), but in no event later than the Termination Date (it being understood that it is not a condition to Closing under this Agreement for Buyer to obtain the Financing or any Alternative Financing). Upon request, Buyer shall inform Seller and the Company on a reasonable basis of the status of its efforts to arrange the Financing and provide copies of all material documents provided to the Lenders to Seller and the Company, to the extent reasonably requested by Seller. Other than as set forth in Section 6.10(b), Buyer shall not, without the prior written consent of the Company, amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the Fee LetterFinancing Commitments (or any definitive agreements related thereto) or on such any other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made toprovision of, or any waiver of any provision remedies under, the Commitment Letter or the Fee Letter Financing Commitments (or following entry into any definitive documents relating to the Committed Financingagreements related thereto), such definitive documents) in each case if such amendment, modification modification, supplement or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate net amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions, to the receipt of the conditions to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x1) prevent or materially delay the Closing or the availability consummation of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing transactions contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.hereby or
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this AgreementAgreement (including Section 5.12(d) hereof), AGCO each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the Commitment Financing Letters and any related Fee Letter (including any “flex” provisions in taking into account the Fee Letteranticipated timing of the Marketing Period) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or consent to any waiver of any provision or remedy under, the Commitment Letter Financing Letters or the any related Fee Letter (or following entry into definitive documents relating to the Committed FinancingLetter, such definitive documents) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing Letters, or (Bii) imposes new or additional conditions or other terms or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Financing or other terms in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account (y) make the expected timing timely funding of the Marketing Period, Financing or satisfaction of the conditions to obtaining the Financing less likely to occur or (yz) adversely impact the ability of AGCO Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Equity Financing Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (Awhen required pursuant to Section 8.7(b) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend Agreement or the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party agreements with respect thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references toclarification, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” foregoing shall include not prohibit Parent from amending the financing contemplated by the Debt Commitment Letter and any related Fee Letter to add additional lender(s) (or definitive financing documents related theretoand Affiliates of such additional lender(s)) as permitted by a party thereto so long as the aggregate number of lenders party to the Debt Commitment Letter and any related Fee Letter does not exceed three (3) (with each party, together with all Affiliates of such party, counted as one lender for such purpose). Any reference in this Section 7.15(aAgreement to (A) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the "market flex" provisions) described in the Debt Commitment Letter, including using its reasonable best efforts to (i) comply with its obligations under the Debt Commitment Letter, (ii) maintain in effect the Debt Commitment Letter, (iii) negotiate and enter into definitive agreements (such definitive agreements, together with the Debt Commitment Letter (including and any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision underrelated fee letters, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A"Debt Financing Documents") with respect to the Debt Financing on terms and conditions (including the "market flex" provisions) contained in the Debt Commitment Letter (or on other terms that, with respect to conditionality or the Fee ability of Purchaser to timely consummate the Debt Financing or the Closing, are not less favorable in any material respect to Purchaser than those contained in the Debt Commitment Letter), (iv) satisfy on a timely basis at or prior to the Closing all conditions precedent to funding in the Debt Commitment Letter that are within the control of Purchaser or any of Purchaser's Affiliates, including the payment of any fees required as a condition to the Debt Financing (or, if deemed advisable by Purchaser, obtain the waiver of conditions applicable to Purchaser contained in the Debt Commitment Letter), (v) enforce its rights under the Debt Commitment Letter to the extent necessary to cause any lender to provide such definitive documents, as applicable, reduces Debt Financing and (vi) if all conditions explicitly set forth in the aggregate amount first paragraph of Section 5 of the Committed Debt Commitment Letter (the "Financing Conditions") have been satisfied or waived, consummate the Debt Financing on the Closing Date. Purchaser shall keep the Equityholder Representative and the Company informed on a reasonable basis and in reasonable detail of the status of its efforts to arrange the Debt Financing, including (x) providing the Equityholder Representative and the Company with copies of all assignments, amendments, supplements, modifications, replacements, restatements, substitutions or waivers to or under the Debt Commitment Letter and executed definitive agreements related to the Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that wouldsubject, in the case of this subclause (Bany fee letter related to the Debt Financing, to redactions solely to omit fee amounts and economic terms of the "market flex" items in a customary manner, and none of which redactions would reduce the aggregate principal amount or adversely affect the conditionality of the Debt Financing or otherwise limit, prevent, impede or delay the consummation of the Debt Financing), (y) upon reasonable request of the Company, confirming with the financial institutions party to the Debt Commitment Letter their intent and ability to perform, and the availability of the Debt Financing, under the Debt Commitment Letters, subject only to satisfaction or waiver of the Financing Conditions and (z) upon reasonable request of the Company, confirming that neither Purchaser nor the financial institutions party to the Debt Commitment Letter are aware of any event or condition that would reasonably be expected to (x) prevent or materially delay result in the Closing or the availability failure of the Committed a Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties Condition. Notwithstanding anything to the Commitment Letter contrary contained in any material respect (the terms of any such amendmentthis Agreement, modification or waiver not nothing contained in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions ofshall require, and references toin no event shall the reasonable best efforts of Purchaser be deemed or construed to require, the Financing, Purchaser to pay any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing material fees in excess of those contemplated by the Debt Commitment Letter (including the "market flex" provision) or definitive financing documents related theretoagree to "market flex" provisions (taken as a whole) as permitted materially less favorable to Purchaser than such corresponding market flex provisions contained in or contemplated by this Section 7.15(a) the Debt Commitment Letter (in each case, whether to be amended, modified secure waiver of any conditions contained therein or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedotherwise).
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Grizzly shall not permit agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Spinco Commitment Letter or and the Fee Spinco Related Letter without the prior written consent of Burgundy (or following entry into definitive documents relating and, to the Committed Financingextent Section 8.3 is applicable, such definitive documents) consent is subject to Burgundy’s obligations in Section 8.3), if such amendmentamendments, modification modifications or waiver waivers would reasonably be expected to (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Spinco Financing below the Below Basis Amount, (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expands, amends or modifies any to the receipt of the conditions to the Committed Financing, in a manner Spinco Financing that would, in the case of this subclause (B), would reasonably be expected to (xA) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially delay the Closing consummation of the transactions contemplated by this Agreement and 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 Committed 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 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 to arrange and obtain the Spinco Financing on the Closing Date taking into account terms and conditions described in or contemplated by the expected timing of Spinco Commitment Letter and the Closing DateSpinco Related Letter, including using reasonable best efforts to (1) maintain in effect the 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 Spinco Commitment Letter and the Spinco Related Letter and otherwise comply with its obligations thereunder, (3) enter into definitive agreements substantially concurrently with the Closing with respect thereto (the “Spinco Debt Financing Agreements”) on the terms and conditions contemplated by the Spinco Commitment Letter and the Spinco Related Letter (or terms and conditions (including the flex provisions) no less favorable to Grizzly and Spinco (in the reasonable discretion of Grizzly) than the terms and conditions in the Spinco Commitment Letter and the Spinco Related Letter), (4) in the event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, consummate the Spinco Financing at or prior to Closing, (5) enforce its rights under the Spinco Commitment Letter and the Spinco Related Letter and (6) in the event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, 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 Agreements, (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, otherwise keep Burgundy reasonably informed of the status of Grizzly’s efforts to arrange the Spinco Financing (or any replacement thereof) and 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 arrange 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 Spinco (in the reasonable discretion of Grizzly) than those in the Spinco Commitment Letter and the Spinco Related Letter as promptly as practicable following the occurrence of such event, including using reasonable best efforts to enter into definitive agreements with respect thereto. Further, Grizzly may, 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 Spinco Financing from a third party or parties (and, in such instance, references herein to the “Spinco Commitment Letter” shall mean and include the written commitment of such third party or 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 delay the consummation of the transactions contemplated by this Agreement and the other Transaction Agreements, or (yC) materially adversely impact the ability of AGCO Grizzly to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendmentthereto, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.or
Appears in 1 contract
Samples: Agreement and Plan of Merger (Georgia Gulf Corp /De/)
Financing. (a) Subject Prior to the terms Closing, Seller and conditions of this Agreement, AGCO the Acquired Companies shall use its commercially reasonable best efforts to provide, and to cause their respective Representatives to provide, at Buyer’s sole expense, such reasonable cooperation with Buyer’s efforts to obtain any debt financing, the Committed Financing (taking into account any reductions thereof pursuant proceeds of which debt financing, or a portion thereof, will be used by Buyer to Section 7.15(b)(A)) fund all or a portion of the Purchase Price payable on the terms Closing Date (the “Financing”) (provided, that such requested cooperation does not unreasonably interfere with the ongoing operations of any of the Acquired Companies) including: (i) furnishing to Representatives of the Financing Sources such information, books and conditions set forth records, other documentation as may be reasonably requested by Buyer and providing access to the Project, subject to the limitations and requirements of Section 6.2(a), (ii) making Seller, the Acquired Companies or their respective Representatives available on reasonable advance notice for a reasonable number of meetings (telephonically or otherwise) with rating agencies and Financing Sources, in each case, at times and locations to be mutually agreed and (iii) reasonably assisting Buyer in the Commitment Letter preparation of (including A) any “flex” provisions bank information memorandum and other marketing documents in connection with the Financing and (B) rating agency presentations, in each case, to the extent customary for debt transactions of the type specified in the Fee Letter) or on documentation evidencing the terms of such other terms and conditions that are acceptable Financing, which assistance shall in any case be limited to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver the provision of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents information relating to the Committed Acquired Companies (including information as to recent performance and developments) that would customarily be provided by the borrower under such Financing; provided, such definitive documentsthat, in each case, none of Seller, any Acquired Company (prior to the Closing Date) if such amendment, modification or waiver their respective Representatives shall be required to (A) with respect disclose any information or take any other action which is prohibited or restricted under applicable Laws or any contract or subject to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), legal privilege or (B) imposes new provide any financial statements or additional conditions information other than the Financial Statements and such other financial statements or otherwise expands, amends or modifies any of the conditions information as is customary for acquisition and project financing and is related to the Committed FinancingAcquired Companies. Buyer shall indemnify, defend and hold harmless Seller, each Acquired Company and each of their respective Representatives from and against any and all Losses incurred by Seller, its Affiliates and their respective Representatives in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance connection with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter Financing or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedinformation provided in connection therewith.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Macquarie Infrastructure Corp)
Financing. Unless otherwise approved in writing by the Company (a) Subject to which approval shall not be unreasonably withheld, conditioned or delayed), and except for any of the terms and conditions following actions that would not increase conditionality or impose any new obligation on the Company or Athena, reduce the PIPE Financing Amount or the subscription amount under any Subscription Agreement or reduce or impair the rights of this Athena or the third-party beneficiary rights of the Company under any Subscription Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Athena shall not permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any waiver replacements of, any of the Subscription Agreements, in each case, other than any provision under, the Commitment Letter assignment or the Fee Letter transfer contemplated therein or expressly permitted thereby (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such without any further amendment, modification or waiver (Ato such assignment or transfer provision) with respect to the Commitment Letter or the Fee Letter any amendment, modification or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing waiver that is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated solely ministerial in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash nature or otherwise in accordance with Section 7.15(b)(A))immaterial, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financingand, in a manner each case, that woulddoes not affect any economic or any other material term, shall not require the prior written consent; provided, that, in the case of this subclause (B)any such assignment or transfer, reasonably be expected the initial party to such Subscription Agreement remains bound by its obligations with respect thereto in the event that the transferee or assignee, as applicable, does not comply with its obligations to consummate the purchase of shares of Athena Common Stock contemplated thereby. Athena shall use its reasonable best efforts to (xi) prevent or materially delay enforce the Closing or the availability obligations of the Committed Financing on PIPE Investors under the Closing Date taking into account Subscription Agreements and consummate the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing purchases contemplated by the Commitment Letter Subscription Agreements on the terms and subject to the conditions set forth in the Subscription Agreements, (or definitive financing documents related theretoii) as permitted by satisfy all conditions to the PIPE Financing set forth in the Subscription Agreements that are within its control, and (iii) satisfy and comply with its obligations under the Subscription Agreements. The Company shall use its reasonable best efforts to, and shall use its reasonable best efforts to cause its Representatives to, cooperate with Athena and its Representatives in connection with the matters specified in this Section 7.15(a7.17, including, without limitation, to satisfy all conditions to the PIPE Financing set forth in the Subscription Agreements that are within its control. If reasonably requested by the Company, Athena shall, to the extent it has such rights under the Subscription Agreement, waive any breach of any representation, warranty, covenant or agreement of the Subscription Agreement by any PIPE Investor to the extent necessary to cause the satisfaction of the conditions to closing of the PIPE Financing set forth in the Subscription Agreements and solely for the purpose of consummating the Closing, provided that (i) any such waiver may be subject to, and conditioned upon, the Closing occurring and the substantially concurrent funding of such PIPE Financing, (ii) subject to, and condition upon, the Closing occurring substantially concurrent funding of the PIPE Financing, the Company also waives any such breach to the extent the Company is a third party beneficiary of the provision that was so breached (iii) any such waiver shall be amendedsubject to the rights of the placement agent, modified or replaced and references as applicable, under such Subscription Agreement with respect to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedwaiver.
Appears in 1 contract
Samples: Business Combination Agreement (Athena Technology Acquisition Corp.)
Financing. (a) Subject Each of Parent and Acquisition Sub shall, and shall cause its Subsidiaries to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) and, if applicable, draw on the Letter of Credit on the terms and conditions set forth described in the Debt Commitment Letter Documents (including any “flex” provisions applicable to the Debt Financing), including using (and causing its Subsidiaries to use) their respective reasonable best efforts to: (i) comply with and maintain in full force and effect the Fee Letter) or on such other Debt Commitment Documents in accordance with the terms and conditions that are acceptable thereof; (ii) to AGCO so long as such other the extent applicable, enter into definitive agreements with respect thereto on the terms and conditions constitute Permitted Financing Termscontained in the Debt Commitment Documents (including any “flex” provisions applicable to the Debt Financing) on a timely basis, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, but in no event later than the Commitment Letter or the Fee Letter Closing; (iii) satisfy on a timely basis (or following entry obtain a waiver of) all conditions applicable to Parent, Acquisition Sub or their respective Subsidiaries in the Debt Commitment Letters (and the definitive agreements entered into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Debt Commitment Letter or Documents); (iv) enforce its rights under the Fee Letter or such definitive documentsDebt Commitment Letters in the event of a breach by any Debt Financing Source and, as if applicable, reduces the aggregate amount of the Committed Financing Shareholder Lender that impedes or delays (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), could reasonably be expected to (ximpede or delay) prevent or materially delay the Closing or the availability and, if necessary, seek specific performance of the Committed Debt Financing Sources and, if applicable, the Shareholder Lender of their obligations thereunder; and (v) draw down upon and consummate the Debt Financing, and, if applicable, draw on the Closing Date taking into account the expected timing Letter of the Closing DateCredit, taking into account the expected timing of the Marketing Periodin each case, at or (y) adversely impact the ability of AGCO to enforce its rights against the other parties prior to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedClosing.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Financing Letters and any related Fee Letter (including any “market flex” provisions contained in the any related Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall ). Buyer will not permit any amendment or modification to be made to, or any waiver of any provision underor remedy pursuant to, the Equity Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver would, or would reasonably be expected to, (i) reduce the aggregate amount of the Equity Financing or (ii) impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Equity Financing or any other terms of the Equity Financing in a manner that would reasonably be expected to (A) with respect to delay or prevent the Commitment Letter Closing Date, (B) make the timely funding of the Equity Financing, or the Fee Letter satisfaction of the conditions to obtain the Equity Financing, less likely to occur or such definitive documents(C) materially adversely impact the ability of Buyer or Seller, as applicable, to enforce their rights and remedies against the other parties to the Equity Commitment Letter. Buyer shall promptly deliver to Seller true and complete copies of any amendment, modification or waiver to or under the Equity Commitment Letter entered into in accordance with this Section 5.11. Prior to Closing, Buyer shall not permit any amendment, modification or supplement to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter or any related Fee Letter (other than (x) a waiver of any closing conditions to the funding of the Debt Financing by the Debt Financing Sources or their agents or (y) to add additional financing sources, arrangers, bookrunners, syndication agents, documentation agents or other agents, managers, co-managers or similar entities that have not executed the Debt Commitment Letter as of the date hereof) if such amendment, modification, supplement or waiver (i) reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless discount, except as set forth in the Committed “market flex” provisions of the Fee Letters) to an amount that, when taken together with the aggregate amount of the Equity Financing is increased by a corresponding amount or the Committed Financing is otherwise made then in effect, Buyer’s cash on hand and amounts available to fund such be drawn under Buyer’s revolving credit facility, would be insufficient for Buyer to (A) pay an amount in cash equal to the Purchase Price pursuant to Section 2.3 and (B) pay any and all fees or original issue discount) from that contemplated and expenses required to be paid by Buyer in connection with the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), Contemplated Transactions and the Financing or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of the Debt Financing or other terms of the Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xA) prevent or materially delay the Closing or Closing, (B) make the availability timely funding of the Committed Debt Financing on the Closing Date taking into account the expected timing or satisfaction of the Closing Date, taking into account conditions to obtaining the expected timing of the Marketing Period, Debt Financing less likely to occur or (yC) materially adversely impact the Buyer’s ability of AGCO to enforce its rights against the other parties to the Debt Commitment Letter in any material respect or the definitive agreements related to the Debt Financing (such other terms that satisfy the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the foregoing requirements are referred to as “Permitted Financing Other Terms”); providedprovided that Buyer shall have the right to substitute other debt financing (or additional equity financing on the same terms as the Equity Financing (as it may be amended, that subject to compliance modified, supplemented or waived in accordance with the other provisions terms of this Section 7.15, AGCO may amend Agreement) so long as Buyer delivers commitment letters to Seller with respect to such additional equity financing) for all or any portion of the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Debt Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Debt Commitment Letter from the same and/or alternative financing sources; provided further that such substitution shall not (1) reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or definitive financing documents related thereto) original issue discount (except as permitted by this Section 7.15(aset forth in any applicable “market flex” provisions)) to be amendedan amount that, modified or replaced when taken together with the aggregate amount of the Equity Financing then in effect, Buyer’s cash on hand and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) amounts available to be amendeddrawn under Buyer’s revolving credit facility, modified would be insufficient for Buyer to (A) pay an amount in cash equal to the Purchase Price pursuant to Section 2.3 and (B) pay any and all fees and expenses required to be paid by Buyer in connection with the Contemplated Transactions and the Financing or replaced.(2) impose new or additional conditions or contingencies 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 satisfaction of the conditions to obtaining the Debt Financing less likely to occur. Any reference in this Agreement to (x) “
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Verso Corp)
Financing. (aa)(i) Subject to the terms and conditions of this Agreement, AGCO each of the Parent and the Merger Sub shall use its reasonable best efforts to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in Financing Letters pursuant to the Fee Letter) or on such other terms thereof. The Parent and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO the Merger Sub shall not permit any amendment amendment, supplement, replacement or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Letters if such amendment, supplement, replacement, modification or waiver (A) with respect to reduces (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing (including by 41 increasing the amount of fees to be paid or original issue discount unless (x) the Committed Debt Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available to fund such fees or original issue discountdiscount and (y) from after giving effect to any of the transactions referred to in clause (x) above, the representation and warranty set forth in Section 3.8 shall be true and correct) ; provided that contemplated any such reduction in the aggregate amount of the Financing may be replaced with an amount of new equity financing on terms no less favorable in any material respect to the Company and the Company Subsidiaries than the terms set forth in the Equity Funding Letters or additional debt financing pursuant to the Debt Commitment Letter or such definitive documents (other than Letters as may be modified in accordance with its the terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), hereof or (B) imposes new or additional conditions to the initial funding or otherwise expands, amends or modifies any of the conditions to the Committed receipt of the initial Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) materially delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) materially adversely impact the ability of AGCO the Parent, the Merger Sub or the Company, as applicable, to enforce its rights against the other parties to the Commitment Letter in any material Financing Letters or the definitive agreements with respect thereto (provided that the terms of any such amendment, modification or waiver not in violation of these clauses (A) Parent and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Merger Sub may amend the Debt Commitment Letter Letters to add or such definitive documents to correct typographical errors, add additional replace lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities so long as such action would not reasonably be expected to materially delay or assign or reassign titles or roles to, or between or among, any entities party theretoprevent the Closing). AGCO The Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Renaissance Learning Inc)
Financing. (a) Subject Purchaser has provided to the Company true and complete executed copies of (i) the Equity Commitment Letter to provide equity financing to Purchaser in the aggregate amount set forth therein (the “Equity Financing” and together with the Debt Financing, the “Financing”) and (ii) the Debt Commitment Letter (such letters, together with the Equity Commitment Letter, the “Commitment Letters”) and any fee letters relating to the Debt Commitment Letter (the “Debt Fee Letters” (provided that terms related to economics, pricing or market “flex” provisions, none of which would reasonably be expected to adversely impact the availability or amount of the Debt Financing, may be redacted in a customary manner)). Each Commitment Letter (x) is a legal, valid and conditions binding obligation of Purchaser and each other party thereto (to the knowledge of Purchaser in the case of the Debt Commitment Letter), except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other Laws of general application affecting enforcement of creditors’ rights or by principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), (y) is in full force and effect, has not been amended, modified, withdrawn, terminated or rescinded in any respect, except for any amendments, in the case of the Debt Commitment Letter, expressly permitted pursuant to Section 6.10, and (z) no event has occurred which (with or without notice, lapse of time or both) would reasonably be expected to constitute a breach thereunder on the part of Purchaser or any other party thereto (to the knowledge of Purchaser in the case of the Debt Commitment Letter). As of the date of this Agreement, AGCO shall use its reasonable best efforts Purchaser has not entered into any agreement, side letter or other written arrangement relating to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant of the transaction contemplated hereby, other than as set forth in the Debt Commitment Letter, or the Equity Financing contemplated by the Equity Commitment Letter, other than as set forth in the Equity Commitment Letter, that, in either case, would adversely affect the availability or the amount of the Debt Financing or Equity Financing, as the case may be, at the Closing. There are no conditions precedent or other contingencies related to Section 7.15(b)(A)) the funding of the Debt Financing on the terms set forth in the Debt Commitment Letter other than the conditions and contingencies expressly set forth in the Debt Commitment Letter and there are no conditions precedent or other contingencies related to the funding of the Equity Commitment Letter on the terms set forth in the Equity Commitment Letter, other than the conditions or contingencies expressly set forth in the Equity Commitment Letter. Assuming the conditions set forth in Section 7.02 are satisfied or waived at the Closing, and the Financing is funded in accordance with the terms of the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision underLetters, the Commitment Letter or aggregate proceeds of the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentstogether with available cash of Purchaser, will be sufficient for Purchaser to make the payments required by Purchaser hereunder, including (x) if such amendment, modification or waiver paying the Aggregate Purchase Price at the Closing and (Ay) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of paying all related fees and expenses to be paid by Purchaser in connection with the transactions contemplated by this Agreement at the Closing (collectively, the “Financing Purposes”). Assuming the conditions set forth in Section 7.02 are satisfied or original issue discount unless waived at the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available Closing, Purchaser does not have any reason to fund such fees or original issue discount) from believe that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably Financing would not be expected to (x) prevent be satisfied on a timely basis or materially delay that the Closing or the availability of the Committed Financing would not be expected to be available to Purchaser on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Compass Group Diversified Holdings LLC)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 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 arrange and obtain the Committed Debt Financing on the terms and conditions described in the Debt Commitment Letter (taking subject to the immediately succeeding sentence and subject to the terms of any Alternative Financing), including by using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter, negotiating and entering into account any reductions thereof pursuant definitive agreements with respect to Section 7.15(b)(A)) the Debt Financing on the terms and conditions set forth in the Debt Commitment Letter (including any “flex” provisions or on other terms no less favorable, in the Fee Letteraggregate, to Parent and the Company, (ii) or satisfy on a timely basis all conditions applicable to Parent in such other terms and conditions definitive agreements that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termswithin its control, and AGCO (iii) enforce its rights under the Debt Commitment Letter in the event of a material breach thereof by the counterparty thereof, and (iv) consummate the Debt Financing at or prior to the Closing. Parent shall not permit have the right from time to time to amend, replace, supplement or otherwise modify, or waive any amendment of its rights under, the Debt Commitment Letter, and/or substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources, provided that any such amendment, replacement, supplement or other modification to be made to, or any waiver of of, any provision under, of the Debt Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Fee Letter Debt Financing shall not, without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver (A) with respect add to, or expand upon, the conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter or the Fee Letter or such definitive documentsin any respect, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new prevent, impede or additional conditions or otherwise expands, amends or modifies any delay the consummation of the conditions to Merger and the Committed Financingother transactions contemplated by this Agreement, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Parent to enforce its rights against the other parties counterparty to the Debt Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles toLetter, or between or among, (D) impose additional material obligations on the Company and any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementits Subsidiaries. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pervasive Software Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to (i) obtain the Committed Equity Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Equity Commitment Letter Letters, (including ii) maintain in effect the Equity Commitment Letters until the Transactions are consummated, (iii) satisfy, or cause to be satisfied, on a timely basis all conditions to the closing of and funding under the Equity Commitment Letters applicable to Parent and/or Merger Sub that are within its control, (iv) consummate the Equity Financing at or prior to the Effective Time and (v) enforce the parties’ funding obligations and the rights of Parent and Merger Sub under the Equity Commitment Letters to the extent necessary to fund the Merger Consideration; provided that Parent and/or Merger Sub may amend or modify the Equity Commitment Letters so long as (A) the aggregate proceeds of the Equity Financing (as amended or modified) will be sufficient for Parent and the Surviving Corporation to pay (1) the Merger Consideration and (2) any “flex” provisions other amounts required to be paid in connection with the Fee Letter) or on such other consummation of the Transactions upon the terms and conditions that are acceptable contemplated hereby and (B) such amendment or modification would not prevent, materially delay or materially impede or impair (1) the ability of Parent and Merger Sub to AGCO so long consummate the Transactions or (2) the rights and benefits of the Company under the Equity Commitment Letters. Parent shall deliver to the Company true and complete copies of such amendment or modification as such other promptly as practicable after execution thereof. In the event any portion of the Equity Financing becomes unavailable on the terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Equity Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Letters, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Parent shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and notify the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (China Mobile Games & Entertainment Group LTD)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall use its reasonable best efforts to (and shall cause its Affiliates and its and its Affiliates’ Representatives 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, proper or advisable to arrange, consummate and obtain the Committed Financing on a timely basis on the terms and conditions described in the Commitment Letter at or prior to the Closing, including using its reasonable best efforts to (i) maintain in effect and comply with its obligations under the Commitment Letter in accordance with the terms and conditions thereof (subject to Buyer’s right to amend, restate, amend and restate, modify, supplement and/or waive the Commitment Letter and the related definitive debt agreements in accordance herewith), provided that such efforts shall not require any material modification of, or waiver of any rights under, the Commitment Letter, or any material payment or concession that would not be required under the terms of the Commitment Letter as in effect on the date hereof and disclosed to Seller, (ii) promptly negotiate and enter into definitive agreements and documents with respect to the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)the “Debt Financing Agreements”) on the terms and conditions set forth contained in the Commitment Letter (including any “flex” provisions in the Fee Letterapplicable thereto), (iii) satisfy or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification cause to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter satisfied on a timely basis (or following entry into definitive documents relating to the Committed Financing, such definitive documentsobtain a waiver of) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount all conditions required for funding of the Committed Financing (including by increasing the amount of fees and applicable to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated Buyer in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of and the conditions Debt Financing Agreements to the Committed Financingfullest extent that they are within its control, in a manner (iv) assuming that would, all conditions contained in the case of this subclause (B)Commitment Letter have been satisfied or waived, reasonably be expected consummate the Financing at or prior to (x) prevent or materially delay the Closing or (including by instructing the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (to provide the Financing, on the terms of any such amendment, modification or waiver not and subject to the conditions set forth in violation of these clauses (Athe Commitment Letter) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend v) enforce its rights under the Commitment Letter at or such definitive documents prior to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedClosing.
Appears in 1 contract
Financing. (a) Subject The Parent and US Holdco shall take, or cause to the terms be taken, all actions and conditions of this Agreementto do, AGCO shall use its reasonable best efforts or cause to be done, all things necessary, proper or advisable to consummate and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and subject only to the conditions (including the market flex provisions) set forth in the Commitment Letter Financing Documents, including taking all actions necessary to (including any “flex” provisions i) maintain in effect and comply with the Fee LetterFinancing Documents, (ii) or on such other terms negotiate and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry enter into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) agreements with respect to the Debt Financing on the terms and subject to the conditions (including the market flex provisions) set forth in the Debt Commitment Letter Letters (or on other terms which do not (A) reduce (or could have the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of any portion of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless other than as effected pursuant to any market flex provisions expressly set forth in the Committed Fee Letter) if such reduction would reduce the aggregate amount of the Financing is increased by a corresponding below the amount or the Committed Financing is otherwise made available needed to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Parent Payment Obligations and the US Holdco Payment Obligations on the Closing Date, or (B) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions precedent to the Financing (or otherwise expand, amend or modify any other provision of the Financing Documents), in a manner that could reasonably be expected to delay or prevent or make less likely to occur the funding of the Financing (or satisfaction of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO the Parent or US Holdco to enforce its rights against the other parties to the Commitment Letter Financing Documents or the definitive agreements with respect to the Financing), (iii) satisfy (and cause its Affiliates to satisfy) on a timely basis all conditions applicable to the Parent and its Affiliates in the Financing Documents and the definitive agreements related thereto (or, if necessary or deemed advisable by the Parent, seek the waiver of conditions applicable to the Parent or its applicable Subsidiary contained in such Financing Document or such definitive agreements related thereto), (iv) consummate the Financing at or prior to the time the Closing was required to occur pursuant to Section 1.3, including using reasonable best efforts to cause the lenders, underwriters and the other Persons committing to fund the Financing to fund the Financing, including to cause the underwriters to procure subscribers for, and if such subscribers cannot be procured, subscribe, any material respect (ordinary shares in the capital of the Parent not properly subscribed and paid for in the Rights Issue in accordance with the terms of the Underwriting Agreement, (v) conduct the Rights Issue in accordance with the Parent Shareholders Circular (or any amendment or supplement thereto), (vi) enforce its rights under the Financing Documents and the definitive agreements relating to the Financing, including enforcing the Parent’s rights to compel GCH to acquire its full entitlement under the terms of the Rights Issue pursuant to Section 3 of the Parent Irrevocable Undertaking, dated the date hereof, between the Parent and GCH, and (vii) comply with its covenants and other obligations under the Financing Documents and the definitive agreements relating to the Financing. The Parent and US Holdco shall not, and shall not permit any of their Affiliates to, take any action that would constitute a breach of, or would result in the termination of, any of the Financing Documents, in each case, in a manner that could reasonably be expected to delay or prevent or make less likely to occur the funding of the Financing on the Closing Date. The Parent and US Holdco shall not, without the prior written consent of the Company, agree to or permit any termination of or amendment, supplement or modification to be made to, or grant any waiver of any provision under, the Financing Documents or the definitive agreements relating to the Financing if such termination, amendment, supplement, modification or waiver not in violation of these clauses could (A) reduce (or could have the effect of reducing) the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount other than as effected pursuant to any market flex provisions expressly set forth in the Fee Letter) if such reduction would reduce the aggregate amount of the Financing below the amount needed to fund the Parent Payment Obligations and the US Holdco Payment Obligations on the Closing Date, (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 (or otherwise expand, amend or modify any other provision of the Financing Documents), in a manner that could reasonably be expected to delay or prevent or make less likely to occur the “Permitted funding of the Financing Terms”)(or satisfaction of the conditions to the Financing) on the Closing Date or (C) adversely impact the ability of the Parent or US Holdco to enforce its rights against other parties to the Financing Documents or the definitive agreements with respect to the Financing; provided, that subject notwithstanding the foregoing, (x) the Parent and US Holdco shall be permitted to compliance with amend the other provisions Debt Commitment Letters solely to add lenders, arrangers, book-runners, syndication and documentation agents or similar entities who have not executed the Debt Commitment Letters as of the date of this Section 7.15Agreement, AGCO may amend (y) the Parent shall be permitted to enter into the Re-Pricing Memorandum as contemplated by the Underwriting Agreement and (z) the Parent and US Holdco shall be permitted to assign their rights and obligations under the Debt Commitment Letter Letters to certain wholly owned Subsidiaries of the Parent to the extent permitted by the Debt Commitment Letters (provided that any such assignment shall not affect the liabilities or obligations of the Parent, US Holdco or the Merger Sub hereunder and the Parent shall cause any such definitive documents assignee to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, perform any entities party theretosuch obligations to the extent necessary to preserve the original intent of the parties hereunder). AGCO The Parent shall promptly deliver to Trimble the Company true and complete copies of any such amendment, modification modification, supplement, consent or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, waiver to or under any Financing Source, references Document or the definitive agreements relating to “Committed Financing” shall include the financing contemplated by Financing as soon as reasonably practicable following the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedexecution thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Regal Entertainment Group)
Financing. (a) Subject Acquiror and Merger Sub shall take, or cause to be taken, as promptly as practicable after the date hereof, all actions, and to do, or cause to be done, all things necessary, on or prior to the terms and conditions of this AgreementClosing Date, AGCO shall use its reasonable best efforts to obtain consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) purchases contemplated by the Subscription Agreements on the terms and conditions described or contemplated therein, including to: (a) satisfy in all material respects on a timely basis all conditions and covenants applicable to Acquiror in the Subscription Agreements and otherwise comply with its obligations thereunder, (b) in the event that all conditions in the Subscription Agreements (other than conditions that Acquiror or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, consummate transactions contemplated by the Subscription Agreements at or prior to Closing and (c) without limiting the Company’s rights to enforce certain of such Subscription Agreements in the event that all conditions in the Subscription Agreements (other than conditions that Acquiror or any of its Affiliates control the satisfaction of and other than those conditions that by their nature are to be satisfied at the Closing) have been satisfied, to cause the applicable PIPE Investors to pay to (or as directed by) Acquiror the applicable portion of the PIPE Investment Amount, as applicable, set forth in the Commitment Letter Subscription Agreements in accordance with their terms. Unless otherwise approved in writing by the Company (including any “flex” provisions in the Fee Letter) which approval shall not be unreasonably withheld, conditioned or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsdelayed), and AGCO Acquiror shall not permit any amendment or modification to be made to, any waiver (in whole or in part) of, or provide consent to modify (including consent to terminate), any provision or remedy under, or any waiver replacements of, any of the Subscription Agreements, in each case, other than as a result of any provision underassignment or transfer contemplated therein or permitted thereby, and in each case in a manner as would reasonably likely result in the Commitment Letter condition set forth in Section 9.03(f) to not be satisfied at the Effective Time. Without limiting the generality of the foregoing, Acquiror shall give the Company, prompt written notice: (i) of any breach or the Fee Letter default (or following entry into definitive documents relating any event or circumstance that, with or without notice, lapse of time or both, could give rise to any breach or default) by any party to any Subscription Agreement known to Acquiror, (ii) of the Committed Financing, such definitive documents) if such amendment, modification receipt of any written notice or waiver (A) other written communication from any party to any Subscription Agreement with respect to the Commitment Letter any actual, potential, threatened or the Fee Letter claimed expiration, lapse, withdrawal, breach, default, termination or such definitive documents, as applicable, reduces the aggregate amount repudiation by any party to any Subscription Agreement or any provisions of any Subscription Agreement and (iii) if Acquiror does not expect to receive all or any portion of the Committed Financing (including by increasing PIPE Investment Amount on the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that wouldterms, in the case of this subclause (B), reasonably be expected to (x) prevent manner or materially delay from the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing PIPE Investors as contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedSubscription Agreements.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Graf Acquisition Corp. IV)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions in any related fee letter) described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms Financing Letters as promptly as possible and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Letters if such amendment, modification or waiver (A) with respect to reduces (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Equity Financing or the Debt Financing (including by increasing the amount of fees to be paid or original issue discount discount) unless (x) the Committed Debt Financing or the Equity Financing, as applicable, is increased by a corresponding amount or and (y) after giving effect to any of the Committed Financing is otherwise made available transactions referred to fund such fees or original issue discountin clause (x) from that contemplated above, the representation and warranty set forth in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))5.4 shall be true and correct, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or (C) otherwise expands, amends or modifies any other provision of the Financing Letters in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay the Closing or delay, prevent or make less likely the availability funding of the Committed Financing on the Closing Date taking into account the expected timing (or satisfaction of the Closing Date, taking into account conditions to the expected timing funding of the Marketing Period, Financing) or (y) adversely impact the ability of AGCO Buyer to enforce its rights against the other parties to the Commitment Letter in any material Financing Letters or the definitive agreements with respect thereto (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that that, subject to compliance with the other provisions of this Section 7.157.20, AGCO Buyer may amend the Debt Commitment Letter or such definitive documents solely to correct typographical errors, add additional lendersarrangers, arrangers bookrunners and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoagents). AGCO Buyer shall promptly deliver to Trimble Seller copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing SourceAgreement, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Financing Letters as permitted by this Section 7.15(a) or required, as the case may be, to be amended, modified or replaced by this Section 7.20(a) and references to “Commitment LetterFinancing Letters” shall include such document documents as permitted by this Section 7.15(a) permitted, or required, as the case may be, to be amended, modified or replacedreplaced by this Section 7.20(a).
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Financing. (a) Subject to the terms and conditions of this Agreement, AGCO The Purchaser shall use its reasonable best efforts to do, or cause to be done, all things reasonably necessary or advisable to obtain the Committed Debt Financing (taking into account as soon as reasonably practicable and, in any reductions thereof pursuant to Section 7.15(b)(A)) event, not later than the Closing Date, on substantially the terms and conditions (including, to the extent applicable, the “flex” provisions), taken as a whole, described in the Debt Commitment Letter and the Fee Letter, including using reasonable best efforts to (i) enter into definitive agreements with respect to the Debt Financing on substantially the terms and conditions (as such terms may be modified or adjusted (x) in accordance with the terms, and within the limits, of the flex provisions contained in any Fee Letter or (y) in accordance with the restrictions on amendments and modifications set forth in the immediately succeeding sentence) contemplated by the Debt Commitment Letter and the related Fee Letter (the “Definitive Debt Financing Agreements”) and (ii) satisfy in all material respects on a timely basis all conditions and covenants (including with respect to the payment of any “flex” provisions ticking, commitment, engagement or placement fees) applicable to and within the control of the Purchaser or the Affiliated Borrowers in the Debt Commitment Letter, the Fee Letter) or on such other terms Letter and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted the Definitive Debt Financing Terms, and AGCO Agreements. The Purchaser shall not permit agree to any amendment amendments or modification to be made modifications to, or grant any waiver of waivers of, any condition or other provision underunder the Debt Commitment Letter, the Commitment Fee Letter or the Fee Letter Definitive Debt Financing Agreements without the prior written consent of the Seller (such consent not to be unreasonably withheld, conditioned or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver would (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount (other than immaterial reductions) of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless of the Committed Debt Financing or similar fee) to an amount that (when combined with any equity financing and cash on hand) is increased by a corresponding less than the amount or needed to satisfy the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Uses, or (B) imposes impose new or additional conditions conditions, or otherwise expandsamend, amends modify or modifies expand any conditions, to the receipt of the Debt Financing or (C) otherwise amend, modify or waive any other provision of the Debt Commitment Letter, the Fee Letter or the Definitive Debt Financing Agreements, in each case of the foregoing clauses (B) and (C), only if in a manner that would (x) materially delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Committed Debt Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) materially adversely impact the ability of AGCO the Purchaser to enforce its rights against the other parties to the Debt Commitment Letter or the Definitive Debt Financing Agreements or (z) materially adversely impact the ability of the Purchaser to timely consummate the transactions contemplated by this Agreement (it being understood that any amendment of the Debt Commitment Letter, the Fee Letter or the Definitive Debt Financing Agreements for the purpose of (I) adding lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter or the Fee Letter as of the date hereof or (II) extending the termination date set forth in the Debt Commitment Letter shall be permitted without the prior written consent of the Seller). Upon any material respect (the terms of any such amendment, modification or waiver not of the Debt Commitment Letter or the Definitive Debt Financing Agreements in violation of these clauses (A) and (Baccordance with this Section 6.11(a), the terms “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Debt Commitment Letter”, “Fee Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.and
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Financing. (a) Subject Neither Parent nor Merger Sub shall agree to any amendment, replacement, supplement or other modification of, or waive any of its rights or any rights in favor of the terms and conditions Company under, any Financing Commitment or any definitive agreements related to any Financing Commitment, in each case, without the prior written consent of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter Company (including any “flex” provisions in the Fee Letter) such amendment, replacement, supplement or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision underof the Financing Commitments that amends, supplements or otherwise modifies the Commitment Letter or the Fee Letter (or following entry into definitive documents relating conditions precedent to the Committed FinancingFinancing Commitments), such definitive documents) if such amendment, replacement, supplement or other modification of, or waiver of any provision would reasonably be expected to (Ax) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Debt Financing below the amount of cash funded at Closing required to consummate the Merger and repay or refinance the debt contemplated in this Agreement or in the Financing Commitments including all fees and expenses related in each case thereto (including by increasing changing the amount of fees to be paid or original issue discount of the Debt Financing or similar fees) unless the Committed Equity Financing is increased by a corresponding amount or (or, in the Committed Financing is otherwise made available to fund such case of additional fees or original issue discount, such Debt Financing permits such amounts to be funded under a revolving credit facility at Closing) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (By) imposes impose new or additional conditions or otherwise expands, amends amend or modifies expand any of the conditions to the Committed Financing, in a manner receipt of the Debt Financing that would, in the case of this subclause (B), would reasonably be expected to (x1) expand the conditions precedent or contingencies to the funding at Closing in a manner that would be reasonably likely to make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or prevent or materially delay the Closing or the availability consummation of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.transactions
Appears in 1 contract
Financing. (a) Subject to the terms Buyer shall, and conditions of this Agreementshall cause its Affiliates to, AGCO shall use its reasonable best efforts to take, or cause to be taken, all appropriate action, do, or cause to be done, all things necessary, proper or advisable under applicable Laws, and to execute and deliver, or cause to be executed and delivered, such instruments and documents as may be required, to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as reasonably practicable on the terms and subject only to the conditions set forth contained in the Commitment Letter Financing Commitments, including using reasonable best efforts to (including any “flex” provisions i) negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions contained in the Fee Letter) Financing Commitments or on such other terms and conditions that are acceptable to AGCO Buyer so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver agreements (A) with respect do not contain any additional or modified conditions or other contingencies to the Commitment Letter funding of the Financing than those contained in the Financing Commitments as of the date of this Agreement (other than additional or modified conditions or contingencies that would not be prohibited in accordance with paragraph (c) of this Section 6.04), (B) are in a form that is otherwise not reasonably likely to prevent, impede or delay the availability of the Financing or the Fee Letter or such definitive documents, as applicable, reduces Closing and (C) do not reduce the aggregate amount of the Committed Debt Financing set forth in the Financing Commitments as of the date of this Agreement, unless in case of this clause (C), replaced with an amount of new financing on conditions no less favorable to Seller than the terms set forth in the Financing Commitments as of the date hereof, (ii) satisfy, and cause its Affiliates to satisfy, on a timely basis all conditions applicable to Buyer or its Affiliates contained in the Financing Commitments and (iii) consummate the Financing contemplated by the Financing Commitments at the Closing, including by increasing taking enforcement action to cause the amount of fees to be paid or original issue discount unless financial institutions providing the Committed Debt Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees the Debt Financing. Buyer shall, and shall cause its Affiliates to, refrain from taking, directly or original issue discount) from indirectly, any action that contemplated is reasonably likely to result in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources failure of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions contained in the Financing Commitments or in any definitive agreement related to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Samples: Stock Purchase Agreement (Factset Research Systems Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Each Parent Party shall use its reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any the “market flex” provisions applicable thereto) described or contemplated in the Fee Letter) Debt Financing Letters pursuant to the terms thereof (or on such other terms and conditions that are acceptable to AGCO each Parent Party and the providers of the Debt Financing so long as such other terms and conditions constitute Permitted are not prohibited by this Section 7.14(a)) and, taking into account the expected timing of the Marketing Period, satisfy (or obtain the waiver of) the conditions to the Debt Financing Termsas described in, and AGCO comply with the covenants applicable to the Parent set forth in, the Debt Financing Letters, and shall not permit any termination (other than in accordance with its terms as in effect on the date hereof), amendment or modification to be made to, or any waiver of any provision under, or any replacement of, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Debt Financing Letters if such termination, amendment, modification modification, waiver or waiver replacement (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated by the Debt Commitment Letter as in effect on the date hereof unless after giving effect to such termination, amendment, modification, waiver or replacement, the representation and warranty set forth in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources sixth sentence of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))5.06 shall remain true, complete and correct, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, receipt of Debt Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date (taking into account the expected timing of the Marketing Period) or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing DateDate or (y) materially and adversely impact the ability of any Parent Party to enforce its rights against other parties to the Debt Financing Letters or the definitive agreements, if any, with respect to the Debt Financing (the “Debt Financing Documents”) or, taking into account the expected timing of the Marketing Period, or (y) adversely impact consummate the ability of AGCO to enforce its rights against Transactions; provided that the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Parent Parties may amend the Debt Financing Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who have not executed the Debt Commitment Letter or such definitive documents as of the date hereof provided the other terms to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, the Debt Financing Letters are unchanged. Parent shall use commercially reasonable efforts to cause any entities party thereto. AGCO shall promptly deliver Debt Financing to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and permit the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing payments contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedTax Receivable Agreement.
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Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Buyer shall use its reasonable best efforts to obtain arrange and to consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as soon as reasonably practicable after the date of this Agreement on the terms and conditions described in the Commitment Letters (provided, that Buyer may replace or amend the Commitment Letters to add Lenders, lead arrangers, bookrunners, syndication agents or similar entities, as applicable, which had not executed the Commitment Letters as of the date hereof, or otherwise replace or amend the Commitment Letters so long as any such replacement or amendment would not (x) expand the conditions precedent to the Financing as set forth in the Commitment Letter Letters as of the date hereof, (including any “flex” provisions y) be reasonably expected to delay the Closing or (z) reduce the aggregate amount available under the Commitment Letters below an amount that, when combined with Buyer’s other sources of funds, is sufficient to pay the Purchase Price and all related fees and expenses in connection with this Agreement and the Fee Lettertransactions contemplated hereby at the Closing), which reasonable best efforts shall include (i) or negotiating definitive agreements with respect thereto on such other terms and conditions that are acceptable to AGCO so long as such other terms and contained therein (the “Financing Agreements”), (ii) satisfying on a timely basis all conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents Letters and the Financing Agreements and (other than iii) to the extent necessary to pay the Purchase Price and all related fees and expenses in accordance connection with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of this Agreement and the transactions contemplated hereby at the Closing taking into account Buyer’s other sources of funds, drawing upon any bridge financing provided for therein. Notwithstanding anything herein to the contrary, Buyer shall have the right from time to time to substitute other debt or cash equity financing for all or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any portion of the conditions to Financing from the Committed Financingsame or alternative financing sources, in each case, in a manner that would, in not materially less beneficial (including as to the case of this subclause (B), reasonably be expected conditions to (xobtaining such alternative financing) prevent to Buyer or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties Seller as compared to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 Letters and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedAgreements.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Parent shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsFinance Documents, and AGCO Parent shall not, without the prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), permit any amendment or modification to be made to, or any waiver of any provision be granted under, the Commitment Letter Finance Documents, except that, without the prior consent of the Company, Parent may amend the Finance Documents to: (i) amend pricing terms (including pursuant to any “market flex” provisions contained in any Finance Document or the Fee Letter side letter); (ii) replace or following entry into definitive documents relating to the Committed Financingadd lenders, such definitive documentsarrangers, underwriters, book-runners, agents or similar entities; or (iii) if such amendment, modification or waiver make any other changes that do not (A) with respect to reduce (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of any portion of the Committed Financing, if such reduction would reduce the aggregate amount of Financing (including by increasing below the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance required, when taken together with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of all other sources of financing or cash or otherwise funding available for payment thereof, to pay the aggregate Closing Amount at the Acceptance Time and on the Closing Date (subject to the provisions in accordance with the final sentence of this Section 7.15(b)(A9.08(a)), or (B) imposes impose new or additional conditions precedent to the availability of the Financing or otherwise expandsexpand, amends amend or modifies modify any of the conditions to the Committed Financing, Financing Conditions in a manner that would, in the case of this subclause (B), could reasonably be expected to (x) delay or prevent or materially delay make less likely to occur the Closing or the availability funding of the Committed Financing (or satisfaction of the Financing Conditions) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yC) adversely impact the ability of AGCO Parent to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacementFinance Documents. For purposes of Section 6.07, Section 9.07 and this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source9.08, references to “Committed Financing” shall include the financing Financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Finance Documents as permitted by this Section 7.15(a) to it may be amended, modified or replaced in accordance with this Section 9.08(a), and references to “Commitment LetterFinance Documents” shall include such document documents as permitted by this Section 7.15(a) to they may be amended, modified or replacedreplaced in accordance with this Section 9.08(a). Notwithstanding anything to the contrary contained in this Agreement, Parent and Merger Sub shall have the right to replace all or any portion of the Financing contemplated by the Finance Documents with any other debt or equity financing, from the same or any alternative financing sources, so long as such substitute financing would not impose new, revised or additional conditions precedent to the availability of such financing relative to the Financing in a manner that would reasonably be expected to delay or prevent or make less likely to occur the funding of such financing relative to the Financing or otherwise adversely impact the ability of Parent and Merger Sub to consummate the transactions contemplated by this Agreement at the Acceptance Time and on the Closing Date.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsDocuments, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Financing Documents if such amendment, modification or waiver (Ai) with respect to reduces (or could have the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed additional Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, or otherwise expands, amends or modifies any other provisions of the Financing Documents in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent to enforce its rights against the other parties to the Commitment Letter Financing Documents, in each of clauses (x) and (y) in any material respect respect. Each of Parent and Merger Sub shall use its reasonable best efforts (A) to maintain in effect the Financing Documents, (B) to satisfy, or cause its Representatives to satisfy, on a timely basis all conditions to funding in the Financing Documents and to consummate the Financing at or prior to the Closing to cause the Lender to fund the Debt Financing at the Closing, (C) to enforce its rights under the Financing Documents and (D) to comply with its obligations under the Subscription Agreement. Each of Parent and Merger Sub shall give the Company prompt notice of any actual breach or any potential material breach by any party under the Financing Documents or any material dispute or disagreement between or among any parties to the Financing Documents, of which Parent or Merger Sub becomes aware or any communications from the Lender or Mr. Hong to the effect that the Lender may not provide any portion of the Debt Financing contemplated by the Subscription Agreement. In the event that any portion of the Financing becomes unavailable in the manner or from the sources contemplated in the Financing Documents despite Parent’s reasonable best efforts to obtain the Financing, (A) Parent shall promptly notify the Company, and (B) Parent shall use its reasonable best efforts to arrange to obtain any such portion of the Financing from alternative sources, on terms that are no less favorable in the aggregate to Parent (the terms “Alternative Financing”), including entering into definitive agreements with respect thereto (the “New Financing Documents”), as promptly as practicable following the occurrence of any such event, including entering into definitive agreements with respect thereto. In connection with its obligations under this Section 6.9, Parent shall be permitted to amend, modify or replace the Financing Documents; provided, however, that the amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance replacement shall comply with the other provisions of this Section 7.156.9. Each of Parent and Merger Sub shall keep the Company informed of all the material steps for arranging the Alternative Financing, AGCO may amend if applicable and provide to the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble Company copies of any such amendment, modification or replacementthe material definitive agreements for the Alternative Financing. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.44
Appears in 1 contract
Samples: Agreement and Plan of Merger (Yucheng Technologies LTD)
Financing. (a) Subject Parent has delivered to the terms and conditions Company a copy of the executed commitment letter, dated as of the date of this AgreementAgreement (the “Debt Commitment Letter”), AGCO shall use its reasonable best efforts by and among Parent, Bank of America, N.A., BofA Securities, Inc., HSBC Securities (USA) Inc., HSBC Bank USA, National Association, The Hongkong and Shanghai Banking Corporation Limited and JPMorgan Chase Bank, N.A. (together with any financing sources added in accordance with the terms of the Debt Commitment Letter and hereof, the “Financing Sources”), pursuant to obtain which the Committed Financing (taking into account any reductions thereof Sources have committed, subject solely to the conditions expressly set forth therein and the terms thereof, to provide the amounts set forth therein for purposes of funding the Contemplated Transactions on the date on which the Closing is to occur pursuant to Section 7.15(b)(A1.3 (the “Debt Financing”)) on . Parent has also delivered to the terms Company a copy of any fee letter with any Financing Source (redacted in a customary manner to mask only the fees payable to the Financing Sources in respect of the Debt Financing, the rates and conditions set forth amounts included in the Commitment Letter (including any “market flex” provisions in the Fee Letterand other economic terms that would not (i) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or adversely affect the availability of the Committed Debt Financing on or to reduce the amount thereof to be less than the amount required to comply with the representation in Section 3.14(b) relating to the Debt Commitment Letter, (ii) impose any new condition or otherwise amend, modify or expand any conditions precedent to the funding of the Debt Financing or (iii) delay or prevent the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these foregoing clauses (Ai), (ii) and (Biii), collectively, the “Permitted Financing TermsProhibited Conditions”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of ) (any such amendmentfee letter, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to a “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Fee Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced”).
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO RG shall use its commercially reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including including, if applicable, any “market flex” provisions contained in the Fee Letterrelated fee letter) or on such other terms and conditions that are acceptable described in the Debt Commitment Letters with respect to AGCO so long as such other terms and conditions constitute Permitted Financing Termsthe conditionality, timing, availability, and AGCO aggregate amount of the Financing (including the amounts to be funded thereunder at the Closing). RG shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing to an amount below the amount of fees required to be paid or original issue discount unless satisfy the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any applicable payment obligations of the Company under this Agreement, (ii) impairs in any material respect the availability of the Financing, (iii) amends the conditions precedent to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect or prevent the Closing, or (iv) adversely impacts in any material respect the ability of RG to enforce or cause the enforcement of the rights of RG under the Debt Commitment Letters (provided, that RG may amend, supplement or replace the Debt Commitment Letters to add or replace lenders, lead arrangers, bookrunners, agents or similar entities so long as such action would not reasonably be expected to materially delay or prevent the Closing). RG shall use its commercially reasonable best efforts (i) to maintain in effect the Debt Commitment Letters until the funding of the Financing at or prior to Closing and to negotiate and enter into definitive agreements with respect to the Debt Commitment Letters on the terms and conditions contained in the Debt Commitment Letters (including, if applicable, giving effect to any “market flex” provisions contained in any related fee letter) (or on terms no less favorable (taken as a whole) to RG, as applicable), (ii) to satisfy on a timely basis all conditions to receipt of any the Financing that are within RG’s control, (iii) upon satisfaction of such amendmentconditions and the conditions set forth in Section 5.1 and Section 5.2, modification to consummate the Financing at or waiver not prior to the Closing (with respect to amounts required to consummate the Merger and make other payments due at such time in violation of these clauses (Aaccordance with the terms hereof) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(aiv) to be amended, modified or replaced and references to “comply in all material respects with its obligations under the Debt Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedLetters.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 3.6.1 The Partner Member shall use its reasonable best efforts to obtain take, or cause to be taken, all actions necessary to (a) maintain in effect the Committed Equity Commitment Letter and Debt Commitment Letter on and prior to the Closing Date; (b) satisfy on a timely basis all conditions applicable to the Partner Member to obtaining the Equity Financing and the Debt Financing at or prior to the Closing; (taking into account any reductions thereof pursuant to Section 7.15(b)(A)c) on enforce the obligations of the Stonepeak Sponsor under the Equity Commitment Letter in accordance with the terms thereof; and (d) subject to the satisfaction or waiver of the conditions set forth in this Agreement (excluding conditions that by their terms cannot be satisfied until the Closing Date, but subject to the satisfaction or waiver of such conditions), consummate Debt Financing at or prior to the Closing, to the extent that the proceeds of such Debt Financing are necessary to finance the transactions contemplated hereby. Prior to the Closing, the Partner Member shall not, without the prior written consent of the Dominion Member, permit any amendment or modification to be made to or replace the Equity Commitment Letter; provided, that, for the avoidance of doubt any assignment by a party to the Equity Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other accordance with its terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not be deemed to be an amendment, modification or replacement of the Equity Commitment Letter. The Partner Member shall not, without the prior written consent of the Dominion Member, permit any amendment or modification to be made to, or consent to any waiver of any provision underor remedy of, or replace the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate net amount of to be funded under the Committed Financing Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof (including by increasing changing the amount of fees to be paid or original issue discount thereof), unless the Committed Equity Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents an equivalent amount, (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes any new or additional conditions condition to the Debt Financing or otherwise expands, amends or modifies any of the conditions condition or any other terms to the Committed Debt Financing, in a each case, in any manner that would, in the case of this subclause (B), could reasonably be expected to (x) materially delay, impede or prevent or materially delay the funding of the Debt Financing at the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (yiv) adversely impact impacts in any material respect the ability of AGCO the Partner Member to enforce its material rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto. For the avoidance of doubt, subject to clauses (i) through (iv) above, nothing herein shall prevent the Partner Member from replacing or amending the Debt Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject order to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or assign other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or reassign titles or roles tosimilar entities, or between to replace the commitment parties with new commitment parties if such actions do not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. The Partner Member shall give the Dominion Member prompt notice of any material breach by any party to the Equity Commitment Letter or amongthe Debt Commitment Letter of which the Partner Member becomes aware that could reasonably be expected to materially delay, impede or prevent the funding of the Debt Financing at the Closing by any entities party theretothereto or any termination of the Debt Commitment Letter. AGCO In the event that any portion of the Debt Financing becomes unavailable, the Partner Member shall give the Dominion Member prompt written notice thereof and shall use its reasonable best efforts to arrange and to obtain a Substitute Debt Financing as promptly as practicable following the occurrence of such event. The Partner Member shall deliver promptly to Trimble the Dominion Member true and complete copies of all agreements (provided that any fee letter will be redacted in a customary manner) pursuant to which any such amendmentalternative sources of the Substitute Debt Financing shall have committed to provide any portion of the Debt Financing. The terms of Sections 6.11.1 and 6.11.2, modification or replacement. For purposes of this Section 7.15 and Section 5.6 with respect to the Debt Financing and the definitions ofDebt Commitment Letter, and references to, shall apply to the Substitute Debt Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedmutatis mutandis.
Appears in 1 contract
Samples: Equity Capital Contribution Agreement (Dominion Energy, Inc)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Grizzly shall not permit agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Spinco Commitment Letter or and the Fee Spinco Related Letter without the prior written consent of Burgundy (or following entry into definitive documents relating and, to the Committed Financingextent Section 8.3 is applicable, such definitive documents) consent is subject to Burgundy’s obligations in Section 8.3), if such amendmentamendments, modification modifications or waiver waivers would reasonably be expected to (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces reduce the aggregate amount of the Committed Spinco Financing below the Below Basis Amount, (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountii) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes impose new or additional conditions or otherwise expands, amends or modifies any to the receipt of the conditions to the Committed Financing, in a manner Spinco Financing that would, in the case of this subclause (B), would reasonably be expected to (xA) expand in any material respect the conditions precedent or contingencies to the funding at Closing, (B) prevent or materially delay the Closing consummation of the transactions contemplated by this Agreement and 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 Committed 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 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 to arrange and obtain the Spinco Financing on the Closing Date taking into account terms and conditions described in or contemplated by the expected timing of Spinco Commitment Letter and the Closing DateSpinco Related Letter, including using reasonable best efforts to (1) maintain in effect the 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 Spinco Commitment Letter and the Spinco Related Letter and otherwise comply with its obligations thereunder, (3) enter into definitive agreements substantially concurrently with the Closing with respect thereto (the “Spinco Debt Financing Agreements”) on the terms and conditions contemplated by the Spinco Commitment Letter and the Spinco Related Letter (or terms and conditions (including the flex provisions) no less favorable to Grizzly and Spinco (in the reasonable discretion of Grizzly) than the terms and conditions in the Spinco Commitment Letter and the Spinco Related Letter), (4) in the event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, consummate the Spinco Financing at or prior to Closing, (5) enforce its rights under the Spinco Commitment Letter and the Spinco Related Letter and (6) in the event that all conditions in the Spinco Commitment Letter and the Spinco Related Letter have been satisfied, 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 Agreements, (y) adversely impact the ability give Burgundy prompt notice of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (breach by any party of the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend 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, otherwise keep Burgundy reasonably informed of the status of Grizzly’s efforts to arrange the Spinco Financing (or any replacement thereof) and 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 arrange 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 Spinco (in the reasonable discretion of Grizzly) than those in the Spinco Commitment Letter and the Spinco Related Letter as promptly as practicable following the occurrence of such event, including using reasonable best efforts to enter into definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party agreements with respect thereto. AGCO Further, Grizzly may, with the prior written consent of Burgundy (which consent shall promptly deliver to Trimble copies of any not be unreasonably withheld, conditioned or delayed), if it so determines in its discretion, arrange for alternative financing for the Spinco Financing from a third party or parties (and, in such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Sourceinstance, references herein to the “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.Spinco
Appears in 1 contract
Samples: Agreement and Plan of Merger (Georgia Gulf Corp /De/)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 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 to arrange and obtain the Committed Financing, including to (i) maintain in effect the Commitment Letters until the funding of the applicable Financing thereunder, (taking into account ii) satisfy on a timely basis all conditions and covenants applicable to Buyer in the Commitment Letters that are within Buyer’s reasonable control, (iii) negotiate, enter into, execute and deliver definitive agreements with respect thereto on a timely basis on terms and conditions no less favorable to Buyer, as applicable, than those contemplated by the applicable Commitment Letters (including, if applicable, any reductions thereof pursuant to Section 7.15(b)(A“market flex” provisions), (iv) on enforce its rights under the Debt Commitment Letters in accordance with the terms thereof and (v) upon the satisfaction of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at Closing, but subject to the fulfillment or waiver of such conditions), consummate the Financing at or prior to the Closing. Without limiting the generality of the foregoing, Buyer shall (A) give Seller prompt notice of any breach or default by any party to any Commitment Letter or definitive document related to the Financing of which Buyer becomes aware and (B) give Seller prompt notice of the receipt of any notice or other communication from any Person with respect to any (1) actual or potential breach, default or termination of the Commitment Letters or the definitive documents related to the Financing by any party thereto or (2) material dispute or disagreement between or among any parties to any Commitment Letter or any definitive document related to the Financing (for the avoidance of doubt, excluding ordinary course negotiations). Notwithstanding the foregoing, nothing herein shall require the Buyer to disclose any information if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any “flex” provisions in confidentiality agreement to which the Fee Letter) Buyer or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing its Affiliates is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(Aparty)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Financing. (a) Subject During the Pre-Closing Period, subject to the terms limitations set forth below, and conditions unless otherwise agreed by Buyer, Seller will instruct the management of this Agreementthe Plastics Business to, AGCO shall and will use its reasonable best efforts to obtain cause the Committed Transferred Entities and their respective accountants, legal counsel and other advisors and representatives to, cooperate with Buyer as reasonably requested by Buyer and as is customary for financings of the type contemplated by the Debt Commitment Letters, and at Buyer’s sole expense, in connection with Buyer’s arrangement of, and obtaining the proceeds of, Debt Financing (taking including, for purposes of this Section 6.10(a) an offering of debt securities of the type contemplated by the Debt Commitment Letters); provided, however, that such cooperation shall not be required to the extent it would: (i) require (A) the entry by Seller or any of its Affiliates (other than the Transferred Entities) into account any reductions thereof pursuant to Section 7.15(b)(A)) agreement or instrument (whether or not conditioned on the terms and conditions set forth in Closing), (B) the Commitment Letter (including entry by any “flex” provisions in Transferred Entity into any agreement the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made toeffectiveness of which is, or any waiver of such Transferred Entity’s obligations thereunder are, not conditioned on the Closing (other than customary authorization letters in connection with any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating syndication materials related to the Committed Debt Financing) or (C) any Transferred Entity or its pre-Closing directors, such definitive documents) if such amendmentofficers, modification managers, general partners or waiver (A) employees to execute, deliver or enter into, approve or perform any agreement, document or instrument with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than customary authorization letters in accordance connection with any syndication materials related to the Debt Financing), (ii) unreasonably interfere with the normal operations of Seller or any of its terms Subsidiaries (including the Transferred Entities), or unless concurrently replaced by commitments from the Plastics Business, (iii) include any actions that would reasonably be expected to (A) result in a violation of any Contract (including the Existing Credit Facilities) or confidentiality agreement or any Law, or the loss of any legal or other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))privilege, or (B) imposes new cause any representation, warranty, covenant or additional conditions other obligation of Seller in the Transaction Agreements to be breached or otherwise expandsany Closing Condition to fail to be satisfied, amends (iv) involve approaching any third parties prior to Closing to discuss agreements limiting the rights of such third parties, (v) involve consenting to the pre filing of UCC-1s or modifies any other grant of Liens or other encumbrances prior to the Closing, (vi) require the giving of representations or warranties to any third parties (other than pursuant to customary authorization letters in connection with any syndication materials related to the Debt Financing) or the indemnification thereof, (vii) require the waiver or amendment of any terms of this Agreement or the payment of any fees or expenses for which Seller has not received prior reimbursement or the incurrence of any liabilities whatsoever prior to the Closing, (viii) cause any director, officer or employee of Seller or any of the conditions Transferred Entities to incur any personal liability (including that none of the board of directors of Seller or the Transferred Entities shall be required to enter into any resolutions or take any similar action approving the Financing until the Closing has occurred or is to occur concurrently with such action), (ix) require the preparation or delivery of any projections or pro forma financial information, (x) require the preparation or delivery of (A) any audited financial statements or (B) except to the Committed extent required by clause (C) of the next sentence, any unaudited financial statements, in each case in a form or subject to a standard different than those provided to Buyer on or prior to the Agreement Date or (xi) require delivery of any legal opinions. Subject to the foregoing limitations, such cooperation will include using reasonable best efforts to (A) make appropriate officers of the Transferred Entities available for participation in a reasonable number of meetings, conference calls, due diligence sessions, roadshows, and rating agency presentations; (B) assist in the preparation of a customary bank information memorandum (including, to the extent necessary, additional bank information memoranda that do not contain material non-public information), offering memorandum, lender presentation, investor presentation, marketing materials and similar marketing and syndication documents, customary materials for rating agency presentations, and customary authorization letters (and execute such authorization letters); (C) prepare and furnish Buyer and the Lenders the Required Bank Information; (D) cause the independent auditors of the Plastics Business to provide, consistent with customary practice, customary auditors consents and customary comfort letters (including “negative assurance” comfort and change period comfort) with respect to financial information relating to the Transferred Entities and their Subsidiaries as reasonably requested by Buyer and necessary or customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act); (E) assist reasonably with the preparation of definitive financing documentation and the schedules and exhibits thereto, in each case, customarily required to be delivered under such definitive financing documentation; (F) facilitate the pledging from and after the Closing of collateral for the Debt Financing (including delivery of original stock certificates and original stock powers of the Transferred Entities to the extent required on the Closing Date in connection with the Debt Financing); (G) cooperate with Buyer in obtaining customary appraisals and field exams required in connection with the Debt Financing upon reasonable prior notice during normal business hours and in completing any borrowing base certificate required in connection with the Debt Financing, including permitting prospective lenders or investors involved in the Debt Financing to evaluate the Transferred Entities’ inventory, current assets, cash management and accounting systems, policies and procedures relating thereto for the purpose of establishing collateral arrangements (including conducting field exams, the commercial finance examinations and inventory, equipment and real property appraisals) and conduct other customary collateral-related diligence, in each case to the extent necessary or advisable to obtain any portion of the Debt Financing consisting of an asset-based credit facility; and (H) provide to Buyer and the Lenders at least three (3) Business Days prior to the Closing Date, to the extent requested in writing at least eight (8) Business Days prior to the Closing Date, (1) all documentation and other information regarding the Transferred Entities required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and (2) if the Transferred Entities qualify as “legal entity customers” under the Beneficial Ownership Regulation, information regarding the Transferred Entities (but not, for the avoidance of doubt, information regarding Seller or any of its Subsidiaries other than the Transferred Entities, or the direct or indirect ownership or owners of the Transferred Equity Interests from and after the Closing) necessary to complete a manner Beneficial Ownership Certification with respect to the Transferred Entities. Buyer agrees that wouldthe effectiveness of any documents executed by or on behalf of the Transferred Entities in connection with the Debt Financing shall be subject to, and shall not be effective until, the consummation of the Closing, and that in no event shall Seller or any of its Affiliates (other than the Transferred Entities) be required to execute or deliver any documents or take or approve any other corporate action in connection with the Debt Financing (other than as expressly provided by Section 6.11). All non-public or otherwise confidential information regarding Seller or any of the Transferred Entities obtained by Buyer pursuant to this Section 6.10(a) shall be kept confidential in accordance with the Confidentiality Agreement, except that Buyer shall be permitted to disclose such information (a) to rating agencies, the Lenders and potential Lenders, participants, prospective participants, hedging counterparties or prospective hedging counterparties in accordance with the terms of the Debt Commitment Letters, subject to the acknowledgment and agreement by such recipient that such information is being disseminated on a confidential basis and that such recipient shall not disclose such information to any other Person, subject only to customary exceptions in no event more extensive than those set forth in the confidentiality provisions of the Debt Commitment Letters as in effect as of the date hereof (including, without limitation, as agreed in any confidential information memorandum or other marketing materials, which may be by “click-through” agreement or other affirmative action on the part of the recipient to access such information) in accordance with standard syndication processes or customary market standards for dissemination of such type of information and (b) in any offering memorandum, provided, in the case of this subclause clause (B), b) that (i) Buyer provides to Seller a draft of such offering memorandum reasonably be expected to (x) prevent or materially delay the Closing or the availability in advance of the Committed Financing on the Closing Date taking into account the expected timing distribution thereof, (ii) confidential information of the Closing Datetype included in such draft offering memorandum is customarily disclosed in offering memoranda for offerings of debt securities pursuant to Rule 144A of a type similar to that being arranged by Buyer and (iii) to the extent Seller determines that it is necessary or desirable for Seller (or its Affiliates (including, taking into account the expected timing following consummation of the Marketing PeriodMergers, or (ythe Parent Group)) adversely impact the ability of AGCO to enforce its rights against the other parties file a Current Report on Form 8-K pursuant to the Commitment Letter Securities Exchange Act of 1934, as amended, that contains material non-public information with respect to the Transferred Entities contained in any material respect such offering memorandum, Purchaser shall give Seller (or its Affiliate (including, following consummation of the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B)Mergers, the “Permitted Financing Terms”Parent Group); provided) an opportunity to file such Current Report on Form 8-K before Buyer distributes such offering memorandum. As a condition to Seller’s obligations pursuant to this Section 6.10, that subject to compliance Buyer shall promptly, upon request by Seller, reimburse Seller for all reasonable out-of-pocket costs and expenses (including reasonable attorney’s fees and expenses and disbursements) incurred by Seller or any of the Transferred Entities in connection with the other provisions of cooperation contemplated by this Section 7.156.10 and shall indemnify and hold harmless Seller, AGCO may amend its Affiliates and their respective Representatives for and against any and all Losses suffered or incurred by them in connection with the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies arrangement of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Debt Financing, any Committed Financing Source, action taken by them pursuant to this Section 6.10 and any Financing Source, references to “Committed Financing” shall include the financing contemplated information utilized in connection therewith (other than information provided by the Commitment Letter (Seller or definitive financing documents related thereto) as permitted by this Section 7.15(a) any of its Affiliates). Seller consents to be amendedthe customary and reasonable use of the logos in respect of the Plastics Business solely in connection with any Debt Financing; provided that such logos are used solely in a manner that is not intended, modified or replaced and references reasonably likely, to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified harm or replaceddisparage Seller or any of its Subsidiaries or Affiliates or the reputation or goodwill of Seller or any of its Subsidiaries or Affiliates.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO Purchaser shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Commitment Letter or Debt Financing Commitment, without the Fee Letter (or following entry into definitive documents relating to the Committed Financingprior written consent of Seller, such definitive documents) if such amendment, modification modification, waiver or waiver replacement (i) (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from to an amount that is below an amount that, assuming the accuracy in all material respects of the representations and warranties contained in Article III and Article IV, is sufficient to complete the transactions contemplated by this Agreement and pay all fees and amounts in connection with this Agreement and the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))transactions contemplated hereby and thereby, or (B) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the Committed receipt of the Debt Financing, in a manner that wouldor (C) otherwise expand, amend or modify any provision of the Debt Financing Commitment, in the case of this subclause clause (BC), in a manner that would reasonably be expected to (xI) delay in any material respect or prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing DateClosing, taking into account the expected timing of the Marketing Period, or (yII) adversely impact the ability of AGCO Purchaser to enforce its rights against under the other parties Debt Financing Commitment or the definitive agreements with respect thereto or (III) delay or impair the availability of the Debt Financing at the Closing or impede the satisfaction of the conditions to obtaining the Commitment Letter in any material respect Debt Financing at the Closing (the terms of any such amendment, modification or waiver not in violation of these clauses (A), (B) and (BC), collectively, the “Permitted Restricted Financing TermsCommitment Amendments”); provided) (provided that, that subject to compliance the limitations set forth in this Section 6.12, Purchaser may amend the Debt Financing Commitment (1) to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as of the date hereof, but only if the addition of such additional parties, individually or in the aggregate, would not result in the occurrence of a Restricted Financing Commitment Amendment, or (2) in connection with the other provisions an alternative financing as contemplated by clause (b) of this Section 7.15, AGCO may amend 6.12) or (ii) results in the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies early termination of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Debt Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedCommitment.
Appears in 1 contract
Financing. (a) Subject At or prior to the terms dates that Merger Sub becomes obligated to accept for payment and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pay for Shares pursuant to Section 7.15(b)(Athe Offer, and at the Effective Time, Purchaser and Merger Sub will have sufficient cash and cash equivalents resources available to pay for the Shares that Merger Sub becomes so obligated to accept for payment and pay for pursuant to the Offer and to pay the aggregate Merger Consideration pursuant to the Merger and the aggregate amount required to redeem all outstanding Convertible Notes. Purchaser has provided to the Company (i) a true and complete copy of executed commitment letters from Clearlake Capital Group, LP to provide equity financing and debt financing in an aggregate amount of $62,000,000 (the "Clearlake Commitment Letters") and (ii) a true and complete copy of an executed commitment letter from Gores Capital Partners II, L.P. and certain of its Affiliates to provide equity financing in an aggregate amount of no less than $55,000,000 (the "Gores Commitment Letter" and, together with the Clearlake Commitment Letters, the "Commitment Letters")) on . There are no conditions to the terms and funding of the financings described in the Commitment Letters other than the conditions precedent set forth in the Commitment Letter Letters delivered to the Company on the date hereof (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsset forth, the "Disclosed Conditions"), and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents no Person (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, Purchaser in the case of this subclause clause (B), reasonably be expected ii) below) has any right to (xi) prevent impose, and Purchaser has no obligation to accept, any condition precedent to such funding other than the Disclosed Conditions or materially delay (ii) reduce the Closing or the availability amounts of the Committed Financing on financing commitments made in the Closing Date taking into account Commitment Letters (subject to the expected timing Disclosed Conditions). As of the Closing Datedate of this Agreement, taking into account the expected timing Commitment Letters are 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 either of the Marketing Period, Commitment Letters. The aggregate proceeds to Purchaser or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing Merger Sub contemplated by the Commitment Letter (Letters will be sufficient to enable Purchaser or definitive financing documents Merger Sub to acquire all of the Shares pursuant to the Merger, to make all payments in respect of the Options pursuant to this Agreement, to repay or refinance debt as contemplated by the Commitment Letters and to pay fees and expenses related thereto) as permitted by to this Section 7.15(a) to be amendedAgreement, modified or replaced the Commitment Letters and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedthe transactions contemplated hereby and thereby.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO RG shall use its commercially reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including, if applicable, any "market flex" provisions contained in the related fee letter) described in the Debt Commitment Letter Letters with respect to the conditionality, timing, availability, and aggregate amount of the Financing (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable amounts to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO be funded thereunder at the Closing). RG shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter Letters without the Table of Contents Company's prior written consent (which consent shall not be unreasonably withheld, conditioned or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documentsdelayed) if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing to an amount below the amount of fees required to be paid or original issue discount unless satisfy the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any applicable payment obligations of the Company under this Agreement, (ii) impairs in any material respect the availability of the Financing, (iii) amends the conditions precedent to the Committed Financing, Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect or prevent the Closing, or (iv) adversely impacts in any material respect the ability of RG to enforce or cause the enforcement of the rights of RG under the Debt Commitment Letters (provided, that RG may amend, supplement or replace the Debt Commitment Letters to add or replace lenders, lead arrangers, bookrunners, agents or similar entities so long as such action would not reasonably be expected to materially delay or prevent the Closing). RG shall use its commercially reasonable best efforts (i) to maintain in effect the Debt Commitment Letters until the funding of the Financing at or prior to Closing and to negotiate and enter into definitive agreements with respect to the Debt Commitment Letters on the terms and conditions contained in the Debt Commitment Letters (including, if applicable, giving effect to any "market flex" provisions contained in any related fee letter) (or on terms no less favorable (taken as a whole) to RG, as applicable), (ii) to satisfy on a timely basis all conditions to receipt of any the Financing that are within RG's control, (iii) upon satisfaction of such amendmentconditions and the conditions set forth in Section 5.1 and Section 5.2, modification to consummate the Financing at or waiver not prior to the Closing (with respect to amounts required to consummate the Merger and make other payments due at such time in violation of these clauses (Aaccordance with the terms hereof) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(aiv) to be amended, modified or replaced and references to “comply in all material respects with its obligations under the Debt Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedLetters.
Appears in 1 contract
Financing. Acquisition shall have obtained the portion of the Financing described in clause (ai) Subject of Section 4.9 substantially on terms contemplated by the Financing Documents relating thereto or alternative financing on terms no less favorable than those set forth in such Financing Documents; provided, however, that the condition of this Section 8.2(e) shall be deemed to have been satisfied if the failure to obtain such Financing was the result of (i) a failure by Acquisition, WCAS or any of their affiliates to perform any covenant or obligation contained in the Financing Documents or the inaccuracy of any representation or warranty of Acquisition contained therein (other than any representation or warranty made by Acquisition as to the terms Company's business, operations or financial condition, other than to the extent any such representation or warranty relates to (A) any matter that gives effect to consummation of the Merger or the Financing, (B) any information prepared by Acquisition, WCAS or any of their affiliates regarding the Company's future operations or pro forma financial information, (C) the granting, perfection, maintenance and conditions any other matters in respect of the security interests contemplated in the Financing Documents, (D) any approvals or consents relating to the Financing, (E) any information or reports given to lenders regarding any matters described in clauses (A) through (J) of this AgreementSection 8.2(e)(i), AGCO shall (F) the authorization, execution and delivery of the documentation relating to the Financing, (G) the use of proceeds from the Financing, (H) the solvency of the Company, (I) the corporate structure necessary to give effect to the Financing or (J) year 2000 compliance other than to the extent disclosed in the Company's public filings, (ii) a failure of WCAS to provide the Equity Contribution or a failure by WCAS Capital to purchase the Subordinated Notes, (iii) a failure of Acquisition to accept modifications, amendments, terms or conditions as contemplated under the terms of such Financing Documents or (iv) a breach by Acquisition of its obligations under Section 4.9. 4. Section 9.1(e) of the Merger Agreement is hereby amended by replacing 'January 31, 1999' with 'March 31, 1999'. 5. Acquisition undertakes to use its reasonable best efforts to obtain cause the Committed Lead Agents to amend the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in the Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents Documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount portion of the Committed Financing described in clause (including i) of Section 4.9 to extend the termination dates thereunder until March 31, 1999, it being understood that reasonable best efforts shall not require Acquisition to accept less favorable terms than those contemplated by increasing the amount of fees Financing Documents. 6. The parties acknowledge and agree that, in the event the Merger Agreement is terminated and Acquisition shall have liability thereunder for breach, any damages shall be calculated as if the amendment to Section 1.2(b)(ii) hereto had not been made and the Cash Election Price shall be deemed to be paid or original issue discount unless $43.50 for purposes of calculating damages. 7. Other than as expressly set forth herein, the Committed Financing Merger Agreement is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated hereby ratified and shall remain unchanged in the Commitment Letter or such definitive documents (all other than respects. 8. This Amendment shall be construed in accordance with its terms or unless concurrently replaced and governed by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any the law of the conditions State of Delaware applicable to agreements entered into and to be performed wholly within such State. 9. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the Committed Financing, in a manner that would, in same effect as if the case of this subclause (B), reasonably be expected to (x) prevent or materially delay signatures thereto and hereto were upon the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against same instrument. This Amendment shall become effective when each party hereto shall have received counterparts hereof signed by the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretohereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.2
Appears in 1 contract
Samples: Agreement and Plan of Merger (Centennial Cellular Corp)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO 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 and obtain the Committed Financing on the terms and conditions described in the Commitment Letter, including using reasonable best efforts to (taking into account any reductions thereof pursuant to Section 7.15(b)(A)i) maintain in effect the Commitment Letter for the commitment period set forth therein, (ii) negotiate definitive agreements with respect thereto on the terms and conditions set forth in the Commitment Letter (including any the “flex” provisions in Definitive Agreements”), (iii) satisfy on a timely basis all conditions to the Fee Letter) or on such other terms and conditions funding of the Financing that are acceptable within its control and comply with its obligations and enforce its rights under the Commitment Letter and (iv) seek to AGCO so long obtain such third-party consents as such other terms and conditions constitute Permitted Financing Termsmay be reasonably required in connection with the Financing. Parent shall have the right from time to time to amend, and AGCO shall not permit any amendment replace, supplement or modification to be made tootherwise modify, or waive any waiver of any provision its rights under, the Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Fee Letter Financing from the same and/or alternative financing sources (or following entry into definitive documents relating including to reduce the Committed amount of the Financing), such definitive documents) if provided that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Commitment Letter (A) with respect shall not expand upon the conditions precedent to the Financing as set forth in the original Commitment Letter (whether by adding additional conditions precedent or modifying conditions precedent contained in the Fee Letter original Commitment Letter), (B) shall provide for a financing amount not less than the amount necessary to satisfy the Required Amounts in full after taking into account the Specified Financial Resources, and (C) shall not prevent or such definitive documents, as applicable, reduces materially delay the aggregate amount consummation of the Committed Mergers and the other transactions contemplated by this Agreement (any financing and related commitment satisfying the foregoing conditions (A)-(C), a “Qualifying Financing”). If any portion of the Financing (including by increasing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the amount of fees to be paid or original issue discount unless Financing unavailable, in each case, on the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that terms and conditions contemplated in the Commitment Letter or and such definitive documents portion is reasonably required to satisfy the Required Amounts in full, Parent shall (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources 1) notify the Company and (2) seek to arrange and obtain Qualifying Financing as promptly as reasonably practicable following the occurrence of from proceeds such event. Parent shall give the Company prompt notice of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of breach by any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject party to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive commitment for any alternative financing obtained in accordance with this Section 6.14) or of any condition not likely to be satisfied, in each case, of which Parent becomes aware or any termination of the Commitment Letter (or commitment for any alternative financing obtained in accordance with this Section 6.14). Parent shall provide to the Company copies of all documents related thereto) as permitted by this Section 7.15(ato the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and engagement letters). Parent shall refrain and shall cause its Affiliates to refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the conditions contained in the Commitment Letter or in any Definitive Agreement. Parent shall keep the Company informed on a prompt basis and in reasonable detail of the status of its efforts to arrange the Financing (or any replacement Financing). Parent shall use its reasonable best efforts to enforce its rights under the Commitment Letter and to cause the lenders and the other Persons providing such Financing (or any alternative financing) to be amendedfund the Financing (or alternative financing) required to consummate the Merger on the Closing Date in accordance with the terms of such Financing (or alternative financing), modified including by commencing a litigation proceeding against any breaching financial institution or replaced institutions in which Parent will use its reasonable best efforts to compel such breaching institution or institutions to provide its portion of such Financing as required. Parent shall use reasonable best efforts to maintain available to itself sufficient Specified Financial Resources such that the representation contained in the third-to-last sentence of Section 4.02(k) remains true and references correct as of each date from and after the date hereof until the earlier to “Commitment Letter” shall include such document as permitted by occur of the Effective time and the termination of this Agreement in accordance with Section 7.15(a) to be amended, modified or replaced8.01.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Talecris Biotherapeutics Holdings Corp.)
Financing. (a) Subject Buyer shall take all action necessary to ensure that as of the terms Closing Date, Buyer has, and conditions will be able to deliver to Seller the funds necessary to consummate the transactions contemplated by this Agreement and the Ancillary Agreements, and shall not, and shall not permit any of this Agreementits Subsidiaries to, AGCO shall use take or agree to take any action that is reasonably likely to prevent, impair its reasonable best efforts ability to obtain complete or materially delay the Committed Financing (taking into account or the satisfaction of any reductions thereof pursuant to Section 7.15(b)(A)) on of the terms and conditions set forth in Article X or the Commitment Letter consummation of the transactions contemplated by this Agreement or any of the Ancillary Agreements. Without limiting the generality of the foregoing, Buyer shall take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Acquisition Financing pursuant to the Revolving Credit Agreement, and the JV Financing on terms and conditions no less favorable to the Company than those described in the JV Revolving Financing Proposals, including (i) maintaining in effect the Original Revolving Credit Agreement and, to the extent applicable, the Amendment, the Revolving Credit Agreement and the JV Financing Proposals, (ii) finalizing and, to the extent it is a party, entering into definitive agreements with respect to the Acquisition Financing and the JV Financing, on terms and conditions no less favorable to the Company or Seller than those contained in the Amendment, the Revolving Credit Agreement and the JV Revolving Financing Proposals, as applicable, including any “flex” provisions in the Fee Letter) provisions, or on such other terms that would not adversely impact the timely consummation of the transactions contemplated hereby, (iii) satisfying on a timely basis all conditions applicable to Buyer and conditions that are acceptable the Company to AGCO so long as such other terms and conditions constitute Permitted Financing Termsobtaining the Financing, and AGCO shall not permit any amendment or modification (iv) drawing down on the Revolving Credit Agreement in amount sufficient to be made to, or any waiver of any provision under, provide the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate full amount of the Committed debt financing required to consummate at the Closing the transactions contemplated by this Agreement on the terms contemplated hereby and to pay related fees and expenses, and otherwise consummating the Acquisition Financing (including by increasing the amount of fees to be paid at or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions prior to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedClosing.
Appears in 1 contract
Financing. (a) Subject Each of Parent, Merger Sub and TIBCO shall use, and shall cause its Affiliates (including the Preferred Equity Issuer) to the terms and conditions of this Agreementuse, AGCO shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange, obtain and consummate the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth in (including, to the Commitment Letter (including extent required, by the Marketing Period and implementation of any “flex” provisions provisions) described in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing TermsCommitment Letters, and AGCO shall not permit any amendment amendment, restatement, replacement, supplement or modification to be made to, or any waiver of any provision under, the Financing Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Letters if such amendment, restatement, replacement, supplement, modification or waiver (A) with respect to the Financing Commitment Letter or the Fee Letter or such definitive documents, as applicableLetters, reduces (or would have the effect of reducing) the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount discount) unless (x) the Committed Debt Financing, the Preferred Equity Financing or the Equity Financing is increased by a corresponding amount or the Committed Debt Financing is otherwise made available to fund such fees or original issue discountdiscount and (y) from that contemplated after giving effect to any of the transactions referred to in clause (x) above, the Commitment Letter or such definitive documents (other than representations and warranties set forth in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))5.09 shall be true, or correct and complete, (B) imposes new or additional conditions, or would permit the imposition of additional conditions precedent, or otherwise expands, amends amends, supplements or modifies any of the conditions precedent to the Committed Financing, Financing or other provision of the Financing Commitment Letters related to conditionality of the funding of such Financing (x) in a manner that would, in materially adverse to the case Company (including with respect to the certainty and timing of this subclause (Bfunding), or (y) that would (or would reasonably be expected to to) (xi) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed full amount of the Financing to be available to Parent (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, (taking into account the expected timing of the Marketing Period, ) or (yii) adversely impact the ability of AGCO TIBCO, Parent, Merger Sub, the Preferred Equity Issuer or the Company, as applicable, to enforce its rights against the other parties to the Financing Commitment Letters or the definitive agreements with respect thereto, or (C) otherwise adversely affect the ability of TIBCO, Parent, Merger Sub or the Preferred Equity Issuer to enforce their rights under the Financing Commitment Letters or to consummate the transactions contemplated by this Agreement or the timing of the Closing, including by making the funding of the Financing less likely to occur (any such actions, impacts or effects in clauses (A), (B) and (C) directly above, an “Adverse Effect on Financing”) (provided that (1) in any event, and notwithstanding anything to the contrary contained in this Agreement, TIBCO, Parent and/or Merger Sub (and/or their applicable Affiliates) may amend any Financing Commitment Letter to add lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or other Debt Financing Sources (or, with respect to the Preferred Equity Commitment Letter, the Preferred Equity Financing Sources) who had not executed such Financing Commitment Letter as of the date hereof and, in any material connection therewith, amend the additional lender, purchasers, investors, lead arrangers, bookrunners or syndication agents provisions with respect to the appointment of such additional lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or other Debt Financing Sources (or, with respect to the terms Preferred Equity Commitment Letter, the Preferred Equity Financing Sources), in each case, which do not have an Adverse Effect on Financing (it being understood and agreed that the creditworthiness of any such additional lenders, purchasers, investors, lead arrangers, bookrunners, syndication agents or other Debt Financing Sources (or, with respect to the Preferred Equity Commitment Letter, the Preferred Equity Financing Sources) shall not be taken into account in determining whether such amendments result in an Adverse Effect on Financing); and (2) TIBCO, Parent or Merger Sub shall (I) disclose to the Company promptly its intention to so amend, restate, replace, supplement, modify, or waive any of the Financing Commitment Letters and (II) promptly (and, in any event, within five Business Days thereof) furnish to the Company copies of any agreements or other documentation with respect to such amendment, restatement, replacement, supplement, modification or waiver waiver). TIBCO, Parent and Merger Sub shall not agree (and shall not permit any of their respective Affiliates (including the Preferred Equity Issuer)) to the withdrawal, termination, repudiation or rescission of any commitment in violation respect of these clauses the Debt Financing or Preferred Equity Financing without the prior written consent of the Company, and shall not, without the prior written consent of the Company, release or consent to the termination of the obligations of (AI) and the Debt Financing Sources under the Debt Commitment Letter, (B), II) the “Permitted Preferred Equity Financing Terms”); provided, that subject to compliance with Sources under the other provisions of this Section 7.15, AGCO may amend the Preferred Equity Commitment Letter or such definitive documents to correct typographical errors(III) any Person under the Equity Commitment Letter, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party theretoas applicable. AGCO Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification restatement, supplement, replacement, modification, withdrawal, termination, repudiation, rescission or replacementwaiver. For purposes of this Section 7.15 and Section 5.6 and the definitions ofAgreement, and references toas applicable, the Financing, any Committed Financing Source, any Financing Source, (i) references to “Committed Financing” shall include the financing contemplated by the Financing Commitment Letter (or definitive financing documents related thereto) Letters as permitted by this Section 7.15(a) to be amended, modified restated, modified, supplemented or replaced by this Section 6.17(a), (ii) references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter (and references to “Commitment LetterPreferred Equity Financing” shall include such document the preferred equity financing contemplated by the Preferred Equity Commitment Letter) as permitted by this Section 7.15(a) to be amended, modified restated, modified, supplemented or replacedreplaced by this Section 6.17(a) and any Alternative Financing permitted by Section 6.17(b) and (iii) references to “Debt Commitment Letter” and “Preferred Equity Commitment Letter” (as applicable) shall include such documents as permitted to be amended, restated, modified, supplemented or replaced by this Section 6.17(a) or any commitment letters for Alternative Financing permitted by Section 6.17(b).
Appears in 1 contract
Financing. New Investing. Give the Administrative Agent (a) Subject advance written notice of the establishment of any new Significant Joint Venture or the formation of any new Significant Subsidiary, which such new Significant Subsidiary shall become a Guarantor, by and effective upon compliance with the provisions of Section 6.04(s), unless (i) such Subsidiary is a Joint Venture Subsidiary, (ii) the terms of the agreement creating such Joint Venture prohibit the joint venturers thereof from being or becoming liable for any Indebtedness other than Indebtedness of the Joint Venture and (b) written notice of the formation of any new Subsidiary which is not a Significant Subsidiary given not later than ninety (90) days after such formation, which new Subsidiary shall become a Guarantor by and effective upon compliance with the provisions of Section 6.04(s), unless (x) such Subsidiary is a Joint Venture Subsidiary, and (y) the terms of the agreement creating such Joint Venture prohibit the joint venturers thereof from being or becoming liable for any Indebtedness other than Indebtedness of the Joint Venture; provided, however, that (A) nothing in this Section 6.07 shall be deemed to authorize the Borrower or any of its Subsidiaries to enter into any such transaction if the same would violate any of the limitations set forth in Article VII hereof, (B) such Subsidiary shall not be required to deliver a Guaranty if applicable laws or regulations (such as, by way of example, laws regulating insurance companies or providers of cable services) prohibit such Subsidiary from delivering a Guaranty and (C) a Subsidiary that is not a Wholly-Owned Subsidiary shall not be required to deliver a Guaranty. Notwithstanding anything to the terms and conditions of contrary in this Agreement, AGCO shall use its reasonable best efforts if at any time or from time to obtain the Committed Financing (taking into account time any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth event results in the Commitment Letter (including any “flex” provisions a Change in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver Status of any provision undera Guarantor, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating Borrower shall deliver notice thereof to the Committed FinancingAdministrative Agent, including a reasonably detailed description of the Change in Status and a statement of the effective date of the Change in Status. Such notice shall be delivered no later than 60 days after the end of the fiscal quarter during which such definitive documents) if such amendmentChange in Status occurs; provided, modification or waiver (A) however, that with respect to any Change in Status occurring during the Commitment Letter or last quarter of Borrower’s fiscal year, such notice shall be delivered no later than 120 days after the Fee Letter or end of such definitive documents, final fiscal quarter. Each Change in Status event shall be effective as applicable, reduces the aggregate amount of the Committed Financing (including effective date of such Change in Status, automatically, without any further action by increasing any party to this Agreement, and the amount Subsidiary that is subject to such Change in Status shall no longer be a Guarantor. In connection with each Change in Status, the Administrative Agent, on behalf of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated Lenders, shall promptly following receipt of written notice of Change in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Status, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions execute and deliver to the Committed Financing, Borrower a written confirmation of such Change in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedStatus.
Appears in 1 contract
Samples: Credit Agreement (Lennar Corp /New/)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser 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 to arrange and obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth described in the Commitment Letter Financing Commitments, including commercially reasonable efforts to (including any “flex” provisions i) maintain in effect the Fee LetterFinancing Commitments, (ii) or satisfy on such other a timely basis all conditions applicable to Purchaser to obtaining the Financing, (iii) negotiate definitive agreements with respect thereto on terms and conditions that are acceptable to AGCO so long as such contained in the Financing Commitments or other terms that would not materially and conditions constitute Permitted adversely impact the ability of Purchaser to timely consummate the transactions contemplated hereby and (iv) consummate the Financing Terms, and AGCO at or prior to the Closing (including by enforcing all of its rights under the Financing Commitments). Purchaser shall not agree to or permit any amendment amendment, supplement or other modification to be made toof, or waive any waiver of any provision its rights under, the any Financing Commitment Letter or the Fee Letter (or following entry into any definitive documents relating agreements related to the Committed Financing, such definitive documents) if in each case, without the Sellers’ prior written consent (which consent shall not be unreasonably withheld or delayed), except any such amendment, supplement or other modification or waiver to the Financing Commitments that would not (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces materially reduce the aggregate amount of the Committed Financing below that amount required to consummate the purchase of the Shares and the other transactions contemplated by this Agreement, (including by increasing B) materially adversely amend or expand any conditions to funding the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated are contained in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A))Financing Commitments, or (BC) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay impede the Closing consummation of the Financing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of transactions contemplated by this Agreement. Upon any such amendment, supplement or modification or waiver not of the Financing Commitments in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance accordance with the other provisions of this Section 7.156.17, AGCO may amend Purchaser shall provide a copy thereof to the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 Sellers and the definitions of, and references to, the Financing, any Committed term “Financing Source, any Financing Source, references to “Committed FinancingCommitments” shall include mean the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) Financing Commitments as permitted by this Section 7.15(a) to be so amended, modified supplemented or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedmodified.
Appears in 1 contract
Financing. (a) Subject to the terms Purchaser and conditions of this Agreement, AGCO Merger Sub shall use its their respective reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) on the terms and conditions set forth described in or contemplated by the Commitment Letter Debt Financing Commitments (including complying with any request exercising so-called “flex” provisions provisions), including using reasonable best efforts to satisfy on a timely basis all conditions to funding in the Fee Letter) Debt Financing Commitments or on with respect to such other terms permanent financing contemplated by the Debt Commitment Letters or an alternative source of debt financing and conditions that are acceptable enforcing all of its rights under or with respect to AGCO so long as such other terms the Debt Financing Commitments or any alternative source of debt financing. Purchaser and conditions constitute Permitted Financing Terms, and AGCO the Merger Sub shall not permit (without the prior written consent of the Company) consent or agree to any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter Debt Financing Commitments or the Fee Letter (or following entry into definitive documents agreements relating to the Committed Debt Financing, such definitive documents) or enter into any other agreement or arrangement with respect to alternative financing, if such amendment, modification or waiver or other agreement or arrangement (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces decreases the aggregate amount of the Committed Debt Financing (including by increasing to an amount that, together with Purchaser’s and the Merger Sub’s cash on hand or available alternative financing commitments, would be less than an amount of fees to that would be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available required to fund such the payment of the Aggregate Adjusted Closing Consideration and the fees and expenses of or original issue discount) from that payable by Purchaser and Merger Sub related to the transactions contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), hereby or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies expands any of the conditions to the Committed Financingreceipt of the Debt Financing (or the permanent financing contemplated by the Debt Financing Commitments or an alternative source of debt financing, in a manner each case in lieu thereof) or otherwise consent or agree to any amendment or modification, or any waiver of any provision or any other agreement or arrangement that would, in the case of this subclause (B), would or would reasonably be expected to (x) prevent or materially delay the Closing funding or financing described therein or the availability consummation of the Committed Financing on transactions contemplated by this Agreement; provided, that, for the Closing Date taking into account avoidance of doubt Purchaser and the expected timing of the Closing Date, taking into account the expected timing of the Marketing PeriodMerger Sub shall be permitted to consent or agree to any amendment or modification, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms waiver of any provision, under the Debt Financing Commitments if such amendment, modification or waiver not in violation solely extends the term of these clauses (A) and (B), the “Permitted Debt Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter Commitments or such definitive documents to correct typographical errors, add additional adds lenders, arrangers and lead arrangers, bookrunners, syndication agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any similar entities party that have not executed the Debt Financing Commitments as of the date hereof as parties thereto. AGCO Upon the Company’s request, Purchaser and the Merger Sub shall promptly deliver to Trimble copies keep the Company reasonably informed on a current basis and in reasonable detail of material developments in respect of the Debt Financing and the financing process relating thereto. Purchaser and the Merger Sub shall provide the Company prompt notice (x) of any such amendment, modification breach or replacement. For purposes of this Section 7.15 and Section 5.6 and default by any party to the definitions of, and references to, Debt Financing Commitments (or the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the permanent financing contemplated by the Commitment Letter (Debt Financing Commitments or an alternative source of debt financing, in each case in lieu thereof) or definitive agreements related thereto of which Purchaser and the Merger Sub become aware that would or would reasonably be expected to prevent or materially delay the funding or financing documents described in the Debt Financing Commitments or the consummation of the transactions contemplated by this Agreement, and (y) if at any time for any reason Purchaser and the Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms and conditions contemplated by the Debt Financing Commitments or definitive agreements related thereto. As soon as reasonably practicable, Purchaser and the Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (x) as permitted by this Section 7.15(aor (y) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedof the immediately preceding sentence.
Appears in 1 contract
Samples: Stock Purchase Agreement and Plan of Merger (J M SMUCKER Co)
Financing. (a) Subject to the terms Acquiror, Panavision Acquisition Sub and conditions of this Agreement, AGCO SIM Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to arrange and obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) and the PIPE Investment on the terms and conditions described in the applicable Debt Commitment Letters and the PIPE Documents, as applicable, including using reasonable best efforts to (i) maintain in effect the Debt Commitment Letters and the PIPE Documents, (ii) satisfy (or obtain the waiver of, if deemed advisable by Acquiror) on a timely basis all conditions to the extent the satisfaction of such conditions requires the cooperation of or is within the control of Acquiror, Panavision Acquisition Sub or SIM Acquisition Sub (or their Affiliates) in the Debt Commitment Letters and any definitive documentation relating to the Debt Financing and the PIPE Documents, as 152 applicable, as of or prior to the Closing, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the applicable Debt Commitment Letters (including any related flex provisions) and the PIPE Documents or on other terms that would not be prohibited by Section 9.4(d), (iv) to the extent the conditions to closing set forth in the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter Letters or the Fee Letter (applicable PIPE Documents are satisfied or following entry into definitive documents relating to waived, consummate the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to Debt Financing and the Commitment Letter or the Fee Letter or such definitive documentsPIPE Investment, as applicable, reduces at the aggregate amount of Closing, (v) comply with their obligations under the Committed Financing Debt Commitment Letters and the PIPE Documents and (including by increasing vi) enforce their rights under the amount of fees Debt Commitment Letters and the PIPE Documents; provided, that, notwithstanding anything to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated contrary in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash this Section 9.4 or otherwise in accordance with Section 7.15(b)(A))this Agreement, or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of all Acquiror Common Shares issued at the conditions Closing pursuant to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing PIPE Documents or the availability of the Committed Alternative Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (Section 9.4(c) shall be issued at a price per share equal to or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedgreater than $10.00 per share.
Appears in 1 contract
Samples: Business Combination Agreement (Saban Capital Acquisition Corp.)
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO Purchaser shall use its commercially reasonable best efforts to obtain the Committed Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) as promptly as practicable on the terms and conditions set forth described in the Commitment Letter, including using commercially reasonable efforts to seek to enforce (including through litigation) its rights under the Commitment Letter in the event of a breach thereof by the Debt Financing Sources thereunder, and using commercially reasonable efforts to: (i) maintain in effect the Commitment Letter, (ii) negotiate definitive agreements with respect to the Debt Financing on the terms and conditions contained in the Commitment Letter so that such agreements are in effect as promptly as practicable but in any event no later than the Closing, (iii) satisfy on a timely basis all conditions applicable to Purchaser in the Commitment Letter that are within its control (including by consummating the Debt Financing pursuant to the terms of the Commitment Letter), (iv) at the request of Seller and if a decree of specific performance by a court of competent jurisdiction is granted ordering the consummation of the Closing pursuant to Section 9.14 of this Agreement, fully enforce the obligations of the lenders (and the rights of Purchaser) under the Commitment Letter, including the filing of one or more lawsuits against the committing parties to fully enforce such lender’s obligations (and the rights of Purchaser) thereunder, and (v) cause the lenders and any “flex” provisions other persons providing the Debt Financing under the Commitment Letter to fund the Debt Financing at Closing. Without limiting the generality of the foregoing, Purchaser shall give Seller prompt notice of (i) any breach by any party to the Commitment Letter of which Purchaser become aware, (ii) the receipt of any written notice or other written communication from any Debt Financing Source with respect to any breach, default, termination or repudiation by any party to the Commitment Letter, (iii) any material dispute or disagreement between or among any parties to the Commitment Letter or any definitive documents related to the Debt Financing and (iv) if for any reason Purchaser believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms, in the Fee Letter) manner or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, from the sources contemplated by the Commitment Letter or the Fee Letter (or following entry into definitive documents relating thereto. As soon as reasonably practicable, but in any event within five (5) days of the date Seller delivers Purchaser a written request, Purchaser shall provide any information reasonably requested by Seller relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated circumstances in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedforegoing sentence.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (International Shipholding Corp)
Financing. The Merger Agreement provides that Pinnacle will not agree (anor permit its a wholly owned subsidiary acting as the borrower under the Financing (the “Borrower”) Subject to agree) to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Financing Letters, in each case, without Boulder’s prior written consent (which consent will not be unreasonably withheld or delayed), if such amendment, supplement, modification or waiver would, or could reasonably be expected to, (i) reduce the aggregate amount of the Financing, including by changing the amount of fees or original issue discount payable pursuant to the terms Financing Letters (unless Pinnacle’s and the Purchaser’s representations in the Merger Agreement regarding the Financing remain true and correct after giving effect to such reduction), (ii) impose new or additional conditions to the Financing, or otherwise expand, amend or modify any of this the conditions to the Financing in a manner that would be more onerous than those conditions to funding contained in the Commitment Letter on the date of the Merger Agreement, AGCO shall (iii) adversely impact the ability of Pinnacle, the Borrower or the Purchaser, as applicable, to enforce its rights against the other parties to the Financing Letters or the definitive agreements with respect thereto or (iv) prevent, impede or delay the consummation of the Financing or the consummation of the Transactions; provided, for the avoidance of doubt, that Xxxxxxxx and the Borrower will be permitted, without the prior consent of Boulder, to amend the Financing Letters to add lenders, lead arrangers, bookrunners and syndication agents or similar entities. In addition to the foregoing, Pinnacle will not (nor will it permit the Borrower to) release or consent to the termination of the Commitment Letter or of any lender under the Financing (each, a “Lender”), except for replacements of the Commitment Letter with alternative financing commitments pursuant to the following paragraph. As used in the Merger Agreement, “Commitment Letter” means the commitment letter among the Borrower, Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated and Bank of America, N.A., together with all exhibits, schedules, annexes and amendments thereto, “Fee Letter” means the fee letter reference in the Commitment Letter, “Financing Letters” means the Fee Letter and the Commitment Letter, collectively, and the “Financing” means provision of funds as set forth in the Financing Letters. The Merger Agreement further provides that Pinnacle will (and will cause the Borrower to) use its reasonable best efforts to arrange and obtain the Committed Financing and as promptly as reasonably practicable on the terms and conditions set forth in the Commitment Letter, including using its reasonable best efforts to (taking into account i) maintain in effect the Commitment Letter in accordance with the terms and subject to the conditions thereof, (ii) comply with its obligations under the Commitment Letter, (iii) as promptly as practicable, negotiate, execute and deliver definitive agreements with respect to the Financing contemplated by the Commitment Letter on the terms and conditions contemplated by the Commitment Letter, (iv) satisfy on a timely basis all conditions to funding that are applicable to Pinnacle or the Borrower in the Commitment Letter and the definitive agreements with respect to the Financing contemplated by the Commitment Letter (and not take any reductions thereof action that would reasonably be expected to prevent or materially impair the consummation of the Financing contemplated by the Commitment Letter), (v) enforce its rights pursuant to Section 7.15(b)(A)the Commitment Letter, (vi) consummate the Financing at Table of Contents or prior to the Closing, including by causing the Lenders to fund the Financing at the Closing, and (vii) take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable in connection with the Financing. In furtherance and not in limitation of the foregoing, in the event that any portion of the Financing becomes unavailable on the terms and conditions set forth in the Commitment Letter or it becomes reasonably likely that it would become so unavailable, Pinnacle will (including or will cause the Borrower to), as promptly as practicable following the occurrence of such event, use its reasonable best efforts to (i) obtain alternative financing from alternative sources in an amount at least equal to the Financing or such unavailable portion thereof, as the case may be and that does not contain any “flex” provisions condition to funding that would be more onerous than those contained in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver of any provision under, the Commitment Letter on the date hereof or any terms that would reasonably be expected to delay or impede the Fee consummation of the debt financing thereunder beyond the Closing Date (the “Alternate Financing”), and (ii) obtain one or more new financing commitment letters with respect to such Alternate Financing (each, a “New Commitment Letter”), in each case which New Commitment Letter(s) will replace the existing Commitment Letter in whole or in part. Pinnacle will promptly provide Boulder with a correct and complete copy of any New Commitment Letter, together with any related exhibits, schedules, supplements and term sheets, and a correct and complete copy of any fee letter in connection therewith (it being understood that such letter will be redacted in a customary manner). Pinnacle will (i) keep Boulder reasonably informed on a reasonably current basis of the status of its efforts to arrange the Financing or any applicable Alternate Financing, and (ii) promptly provide Boulder with copies of all executed amendments, modifications or replacements of the Commitment Letter (it being understood that any amendments, modifications or following entry into definitive documents relating to replacements will only be as permitted in the Committed FinancingMerger Agreement). Without limiting the generality of the foregoing, such definitive documents) if such amendment, modification or waiver Pinnacle will promptly notify Boulder (A) of any breach (or threatened breach) or default (or 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) by any party to the Financing Letters or definitive agreements related to the Financing, which breach or default would reasonably be expected to cause Pinnacle’s and the Purchaser’s representations in the Merger Agreement regarding the Financing to no longer be true and correct, (B) of the receipt by Pinnacle or the Borrower of any oral or written notice or communication from any Lender with respect to the Commitment any (1) actual or threatened material breach, default, termination or repudiation by any party to a Financing Letter or any definitive agreements related to the Fee Financing of any provisions of any Financing Letter or such definitive documentsagreements, as applicable, reduces (2) material dispute or disagreement between or among any parties to a Financing Letter or any definitive agreements related to the aggregate Financing or (3) failure by a party to the Financing Letters to fund the Financing or the reduction of any amount of the Committed Financing Financing, and (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount C) if for any reason Pinnacle at any time believes in good faith that it or the Committed Financing is otherwise made available Borrower will not be able to fund such fees obtain all or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any portion of the conditions to Financing on the Committed Financing, in a manner that wouldterms, in the case manner or from the sources contemplated by the Financing Letters or any definitive agreements related to the Financing. Upon request of this subclause Pinnacle or the Purchaser, Boulder will provide reasonable cooperation and assistance to Pinnacle and the Purchaser in connection with the arrangement of the Financing as may be reasonably requested by Pinnacle or the Purchaser and that is necessary, customary or advisable in connection with Pinnacle’s and the Purchaser’s efforts to obtain the Financing (Bprovided that such requested cooperation and assistance does not unreasonably interfere with the ongoing business of Boulder), reasonably be expected . Boulder will also provide to Pinnacle the Required Bank Information (xdefined below) prevent or materially delay prior to the commencement of a period (the “Bank Marketing Period”) of at least 10 consecutive business days prior to the Closing (provided, that the Bank Marketing Period will not commence prior to January 4, 2016 and will exclude January 18, 2016 and February 15, 2016) or such shorter period as Pinnacle otherwise specifies in writing. Boulder agrees that it will give Xxxxxxxx notice if it becomes aware that the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, Required Bank Information taken as a whole is or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter becomes incorrect in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedrespect.
Appears in 1 contract
Financing. (a) Subject to From the terms and conditions date of this AgreementAgreement and until the Closing, AGCO shall Parent will use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to (i)(A) maintain in full force and effect the Committed Financing Commitment Letters (taking into account any reductions subject to amendment or replacement thereof pursuant to in accordance with this Section 7.15(b)(A8.9(a)) until the earlier of the consummation of the Transactions and the valid termination of this Agreement and (B) arrange, obtain and consummate the Financing on the terms and conditions set forth contemplated by the respective Commitment Letters (subject to amendment or replacement thereof in accordance with this Section 8.9(a)), (ii) enter into definitive written agreements with respect to the Capital Financing on terms and conditions contained in the Financing Commitment Letters and the Debt Financing Fee Letter (subject to amendment or replacement thereof in accordance with this Section 8.9(a)) (including any “flex” provisions applicable to the Debt Commitment Letter) or, in Parent’s sole discretion, on other terms than those contained in the Financing Commitment Letters (including any “flex” provisions applicable thereto) and the Debt Financing Fee Letter) or on , in each case, which such other terms and conditions shall not shall not constitute a Prohibited Financing Amendment (with such agreements to be in effect no later than the Closing Date) (such definitive agreements governing the Capital Financing, the “Capital Financing Agreements”), (iii) satisfy on a timely basis all obligations applicable to Parent under the Commitment Letters that are acceptable within the control of Parent, (iv) upon satisfaction of the conditions set forth in the Commitment Letters (other than those to AGCO so long as such other terms be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at Closing), consummate the Financing no later than at the Closing and conditions constitute Permitted Financing Terms(v) fully enforce its rights under the Commitment Letters. Without the prior written consent of the Company, and AGCO Parent shall not permit any amendment amendment, replacement or modification to be made to, or any waiver of any provision underor remedy under (1) the Financing Commitment Letters, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, replacement, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Capital Financing below the amount, taking into account all other sources of proceeds, necessary to fund the Required Funding Amount unless (including by increasing I) in the case of any such reduction with respect to the aggregate amount of fees committed under the Debt Commitment Letter contemplated to be paid or original issue discount unless funded on the Committed Closing Date, the Equity Financing that is provided by the Equity Investors pursuant to the Equity Commitment Letters (as amended in accordance with this Section 8.9(a)) is increased by a corresponding an amount or the Committed Financing is otherwise made available equal to fund such fees or original issue discountreduction and (II) from that contemplated in the case of any such reduction with respect to the aggregate amount committed under the Preferred Equity Commitment Letter or such definitive documents contemplated to be funded on the Closing Date, (other than x) the Equity Financing that is provided by the Equity Investors pursuant to the Equity Commitment Letters (as amended in accordance with its this Section 8.9(a)) is increased by an amount equal to such reduction and/or (y) Parent obtains one or more additional equity financing commitment letters, pursuant to which one or more equity investors approved by the Company (such approval not to be unreasonably, withheld, conditioned or delayed) commits to invest in Parent, on or prior to the Closing, an amount equal to such reduction on terms or unless concurrently replaced by commitments from other and conditions that shall not, without the prior written consent of the Company, affect any Prohibited Financing Amendment (such additional equity financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)under this clause (y), or the “Replacement Equity Financing” with any such Replacement Equity Financing being deemed to constitute “Capital Financing”, and the equity commitment letter with respect thereto being deemed to constitute a “Financing Commitment Letter”); (B) imposes new or additional conditions or otherwise expands, amends or modifies expands any of the conditions conditions, in each case, to the Committed Financing, receipt of the Capital Financing in a manner that would, in the case of this subclause (B), would reasonably be expected to (xI) prevent or materially delay or prevent the Closing or (II) make the availability timely funding of the Committed Capital Financing contemplated to be funded on the Closing Date taking into account the expected timing or satisfaction of the conditions to obtaining the Capital Financing on or prior to the Closing Date, taking into account Date less likely to occur; or (C) otherwise would reasonably be expected to (I) materially delay or prevent the expected timing Closing; (II) make the timely funding of the Marketing Period, Capital Financing or satisfaction of the conditions to obtaining the Capital Financing on or prior to the Closing Date less likely to occur; or (yIII) adversely impact the ability of AGCO Parent to enforce its rights against the any other parties party to the Financing Commitment Letters (it being understood and agreed that, in any event, Parent may amend the Financing Commitment Letters solely to add lenders, agents, co-agents, arrangers, bookrunners, managers or similar entities that have not executed such Financing Commitment Letter in any material respect as of the date of this Agreement) (the terms of any such amendment, modification or waiver not limitations set forth in violation of these clauses this clause (A) and (B1), the “Permitted Prohibited Financing TermsAmendments”) or (2) the Equity Commitment Letters. In the event that any portion of the Capital Financing becomes unavailable to Parent on the terms and conditions set forth in the Debt Commitment Letter and Debt Financing Fee Letter or from the parties thereto, Parent will promptly notify the Company and will use its reasonable best efforts to obtain alternative capital financing on terms and conditions not less favorable to Parent (with respect to such terms (but not, for the avoidance of doubt, such conditions), as determined in good faith by Parent) than those contained in the Financing Commitment Letters and the Debt Financing Fee Letter as of the date of this Agreement (including any “flex” provisions applicable thereto) or, in Parent’s sole discretion, on other terms than those contained in the Financing Commitment Letters and the Debt Financing Fee Letter as of the date of this Agreement (including any “flex” provisions applicable thereto), in each case, from the same or alternative sources in an amount sufficient, when added to any portion of the Financing still available, to fund the Required Funding Amount as promptly as reasonably practicable (the “Alternative Financing” with any such Alternative Financing being deemed to constitute “Capital Financing”, the debt commitment letter with respect thereto being deemed to constitute a “Financing Commitment Letter”, the fee letter with respect thereto being deemed to constitute a “Debt Financing Fee Letter” and the definitive documentation with respect thereto being deemed to constitute the “Capital Financing Agreements”); providedprovided that, without the prior written consent of the Company, such Alternative Financing shall not affect any Prohibited Financing Amendments. Parent shall deliver to the Company true, correct and complete copies of the executed debt commitment letter with respect to such Alternative Financing (and the related fee letter, which may be redacted in the manner set forth in Section 5.8) promptly following the execution thereof. Parent shall give the Company prompt written notice of (w) any material breach or default (or any event or circumstance that subject with or without the lapse of time, or both, would give rise to compliance any breach or default) by any party to the Commitment Letters of any material provision which Parent has become aware, (x) the expiration or termination in writing (or attempted or purported termination in writing, whether or not valid) of any Commitment Letter, (y) the receipt by Parent of any written or electronic (including email) notice or communication by any investor or Financing Source party to the applicable Commitment Letter with the other provisions of this Section 7.15respect to any actual or threatened in writing material breach, AGCO may amend the default, repudiation by any party to any Commitment Letter or such definitive documents any refusal to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles toprovide, or between stated intent that it will not provide, by any investor or among, any entities Financing Source party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references toapplicable Commitment Letter, the Financing, any Committed full amount of the Equity Financing Source, any or the Capital Financing Source, references to “Committed Financing” shall include the financing contemplated by the applicable Commitment Letter for any reason or (z) Parent’s or definitive Merger Sub’s good faith belief, for any reason, that it would or it is reasonably likely that it would no longer be able to obtain all or any portion of any Financing to be funded at Closing and shall otherwise keep the Company reasonably informed of the status of Parent’s efforts to arrange the Financing upon the written request of the Company. Notwithstanding anything to the contrary contained in this Agreement, in no event shall the reasonable best efforts of Parent require or be deemed or construed to require Parent to (I) seek equity financing documents related theretofrom any source (other than the Equity Financing) as permitted or (II) pay aggregate fees in excess of those contemplated by the Financing Commitment Letters (whether to secure waiver of any conditions contained in any Commitment Letter). For the avoidance of doubt, nothing in this Section 7.15(a8.9(a) shall require Parent or Merger Sub to be amended, modified disclose any information that is subject to the attorney-client or replaced and references to “work product privilege or similar privilege or the disclosure of which would result in the breach of any of Parent’s or Merger Sub’s confidentiality obligations set forth in the Financing Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedLetters.
Appears in 1 contract
Financing. (a) Subject Each of Parent and Merger Sub shall 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, proper or advisable to arrange, obtain and consummate the Financing in an amount required to satisfy the Financing Uses not later than the Closing Date on the terms and conditions described in or contemplated by the Commitment Letters (including complying with any valid request requiring the exercise of this Agreement“market flex” provisions in the fee letter associated with the Debt Commitment Letter) (or on other terms that, AGCO shall use its with respect to conditionality, are not less favorable to Parent than the terms and conditions (including any “market flex” provisions) set forth in the Commitment Letters so long as such other terms would not have any result, event or consequence described in any of clauses (A) through (D) of Section 4.16(c)), including using reasonable best efforts to obtain (i) maintain in full force and effect the Committed Commitment Letters, (ii) negotiate and execute definitive agreements with respect to the Debt Financing required to satisfy the Financing Uses (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing required to satisfy the Financing Uses (after taking into account any reductions thereof pursuant to Section 7.15(b)(Aavailable Equity Financing and available cash of the Company and its Subsidiaries)) on the terms and conditions set forth contained in the Debt Commitment Letter (which may reflect “market flex” provisions) (or on other terms that, with respect to conditionality, are not less favorable to Parent than the terms and conditions contained in the Debt Commitment Letter (including any “market flex” provisions in the Fee Letterprovisions) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termswould not have any result, and AGCO shall not permit any amendment event or modification to be made to, or any waiver of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated consequence described in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and through (BD) of Section 4.16(c)) (such definitive agreements, the “Permitted Definitive Financing TermsAgreements”); provided, (iii) satisfy and comply with on a timely basis (except to the extent that subject Parent and Merger Sub have obtained the waiver of) all conditions and covenants to compliance with the other provisions funding or investing of this Section 7.15, AGCO may amend the Financing required to satisfy the Financing Uses applicable to Parent or Merger Sub in the Commitment Letter Letters and the Definitive Financing Agreements that are within their control that are to be satisfied by Parent or Merger Sub, (iv) enforce Parent’s and Merger Sub’s rights under the Commitment Letters and (v) consummate the Financing in an amount required to satisfy the Financing Uses at or prior to the Closing, which such definitive documents reasonable best efforts shall include, in the event that all conditions contained in the Commitment Letters or the Definitive Financing Agreements applicable to correct typographical errorsthe funding or investing of the Financing required to satisfy the Financing Uses (except those that, add additional lendersby their nature, arrangers are to be satisfied at the Closing) have been satisfied or waived, taking action to cause the Debt Financing Sources thereunder to comply with their respective obligations under the Commitment Letters or the Definitive Financing Agreements, including to provide the Financing required to satisfy the Financing Uses on the Closing Date. Parent shall, upon the reasonable request of the Company, keep the Company informed on a reasonably current basis in reasonable detail of any material developments concerning the status of its efforts to arrange the Debt Financing. Upon the reasonable request of the Company, Parent and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Merger Sub shall promptly deliver to Trimble provide the Company with copies of any such amendment, modification executed Definitive Financing Agreements. Neither Parent nor Merger Sub shall release or replacement. For purposes consent to the termination of this Section 7.15 the obligations of the Debt Financing Sources to provide the Debt Financing in an amount required to satisfy the Financing Uses (after taking into account any available Equity Financing and Section 5.6 available cash of the Company and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replacedits Subsidiaries).
Appears in 1 contract
Financing. Parent has binding written --------- commitments, addressed to Parent or Sub, from one or more financially responsible financial institutions, dated as of November 18, 1997, true and complete copies of which have been furnished to the Company (acollectively, the "Commitments") to obtain, together with the other funds to be provided by Parent, the financing necessary to pay the Cash Election Price with respect to each Share outstanding at the Effective Time (other than Electing Shares), to pay (or provide the funds for the Company to pay) all amounts contemplated by Section 2.2 when due, to refinance any indebtedness or other obligation of the Company and its Subsidiaries which may become due as a result of this Agreement or any of the transactions contemplated hereby, to pay all related fees and expenses and to provide for the anticipated working capital needs of the Surviving Corporation following the Merger (the financing necessary to provide such funds being hereinafter referred to as the "Financing"), which Commitments are in full force and effect as of November 18, 1997. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing other than as set forth in the Commitments. Subject to the terms and conditions of this Agreement, AGCO shall use its reasonable best efforts to obtain Agreement and receipt of the Committed proceeds of the Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions as set forth in the Commitment Letter Commitments (including any “flex” provisions or on other terms reasonably satisfactory to Parent), at the closing of the Merger, Parent will capitalize Sub with an aggregate equity contribution of at least $117.5 million. Parent will be under no obligation pursuant to the preceding sentence unless and until the proceeds of the Financing are received as set forth in the Fee Letter) or on such other terms and conditions that are acceptable Commitments. In addition, Parent will be under no obligation under any circumstances to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any amendment or modification to be made to, or any waiver capitalize Sub with equity of any provision under, the Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other more than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed Financing, in a manner that would, in the case of this subclause (B), reasonably be expected to (x) prevent or materially delay the Closing or the availability of the Committed Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO to enforce its rights against the other parties to the Commitment Letter in any material respect (the terms of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced$117.5 million."
Appears in 1 contract
Financing. (a) Subject to the other terms and conditions of this Agreement, AGCO the Buyer shall use its reasonable best efforts to obtain take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to arrange and consummate the Committed Equity Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions described in the Equity Commitment Letters, including using reasonable best efforts to (x) satisfy, or cause to be satisfied, on a timely basis, any conditions within Buyer’s control to funding in the Equity Commitment Letters and (y) upon satisfaction of the conditions set forth in Article VI (Conditions) (other than those that, by their nature, are to be satisfied at the Closing, all of which are capable of being satisfied at the Closing), consummate the Equity Financing at or prior to the Closing. Upon the reasonable written request of the Seller, Buyer shall provide Seller with a reasonable update of the status of its efforts to arrange the Equity Financing. The Buyer shall promptly notify the Seller in writing (A) if there exists any actual or potential breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material breach or default) by any party to the Equity Commitment Letter Letters, (including B) of the receipt by the Buyer or any “flex” provisions Sponsor or any of their respective Representatives of any written or oral notice with respect to any potential or actual breach, default, termination or repudiation by any party to the Equity Commitment Letters or (C) if, for any reason, the Buyer no longer believes in good faith that it will be able to obtain all or any portion of the Fee Letter) or Equity Financing contemplated by the Equity Commitment Letters on such other the terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO described therein. The Buyer shall not permit consent to (a) any amendment or modification to be made to, or any waiver of any provision under, the Equity Commitment Letter or the Fee Letter (or following entry into definitive documents relating to the Committed Financing, such definitive documents) Letters if such amendment, modification or waiver (Ai) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces decreases the aggregate amount of the Committed Financing Equity Financing, (including by increasing the amount of fees to be paid or original issue discount unless the Committed Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii) imposes new or additional conditions or otherwise expands, amends or modifies expands any of the conditions to the Committed Financing, in a manner that would, in receipt of the case of this subclause Equity Financing or (B), iii) would otherwise reasonably be expected to (xA) prevent prevent, jeopardize or materially delay the Closing or Closing, (B) make the availability funding of the Committed Equity Financing on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, materially less likely to occur or (yC) adversely impact the ability of AGCO the Buyer to enforce its rights against the other parties to the Equity Commitment Letter Letters, in any material respect (each case without prior consent of the terms Seller. The Buyer shall promptly furnish to the Seller a copy of any such amendment, modification modification, waiver or waiver not consent of or relating to the Equity Commitment Letters. The Buyer shall, and shall cause its Affiliates to, refrain from taking, directly or indirectly, any action that would reasonably be expected to result in violation the failure of these clauses (A) and (B), any of the “Permitted Financing Terms”); provided, that subject to compliance with conditions contained in the other provisions of this Section 7.15, AGCO may amend the Equity Commitment Letter or such in any definitive documents agreement relating to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO shall promptly deliver to Trimble copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Equity Financing, any Committed Financing Source, any Financing Source, references to “Committed Financing” shall include the financing contemplated by the Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced.
Appears in 1 contract
Financing. (a) Subject to the terms and conditions of this Agreement, AGCO each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Committed Transaction Debt Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the “market flex” provisions, provided that such provisions do not reduce the amount or adversely affect the availability of the Transaction Debt Financing to be funded at Closing or the ability of Parent and Merger Sub to timely pay the Required Payment Amount as contemplated by this Agreement) described in the Debt Commitment Letter (including any “flex” provisions in the Fee Letter) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Termsat Closing, and AGCO shall not not, without the prior written consent of the Company, agree to or permit any amendment or modification to be made to, or any waiver of any provision under, the Debt Commitment Letter or the Fee Letter (or following entry into definitive documents agreements relating to the Committed Transaction Debt Financing, such definitive documentsthat (i) if such amendment, modification or waiver (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Transaction Debt Financing (including by increasing changing the amount of fees to be paid or original issue discount unless of the Committed Transaction Debt Financing is increased by a corresponding amount or the Committed Financing is otherwise made available to fund such fees or original issue discountsimilar fees) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), or (Bii)(A) imposes new or additional conditions precedent or other terms of the Transaction Debt Financing or (B) otherwise adversely expands, amends or modifies any of the conditions precedent to the Committed Transaction Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Commitment Letter, in the case of clauses (A) and (B), in a manner that would, in the case of this subclause (B), would reasonably be expected to (x1) delay, prevent or materially delay impede the Closing ability of Parent and Merger Sub to consummate the transactions contemplated by this Agreement, (2) make the timely funding of the Transaction Debt Financing contemplated by the Debt Commitment Letter (or satisfaction of the conditions precedent to the Transaction Debt Financing) or the availability timely payment of the Committed Financing Required Payment Amount as contemplated by this Agreement on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, less likely to occur or (y3) adversely impact the ability of AGCO each of Parent and Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter in any material or the definitive agreements with respect thereto (provided that, without the terms consent of any such amendmentthe Company, modification or waiver not in violation of these clauses (A) Parent and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO Merger Sub may amend the Debt Commitment Letter or such definitive documents (x) to correct typographical errors, add additional lenders, arrangers arrangers, bookrunners and agents agents, (y) to implement or reallocate commitments or assign or reassign titles or roles toexercise any of the “market flex” provisions (including pricing terms) contained in the fee letter executed in connection with the Debt Commitment Letter), or between (z) to reduce the size of Parent’s new credit facility to an amount at least equal to $1.38 billion, if such amendments do not reduce the amount or among, any entities party theretoadversely affect the availability of the Transaction Debt Financing to be funded at Closing or the ability of Parent and Merger Sub to timely pay the Required Payment Amount as contemplated by this Agreement. AGCO Parent shall promptly deliver to Trimble the Company copies of any such amendment, modification or replacement. For purposes of this Section 7.15 and Section 5.6 and the definitions of, and references to, the Financing, any Committed Financing Source, any Financing Source7.11, references to “Committed Transaction Debt Financing” shall include the financing Transaction Debt Financing contemplated by the Debt Commitment Letter (or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amended, modified or replaced by this Section 7.11(a) and references to “Debt Commitment Letter” shall include such document documents as permitted by this Section 7.15(a) to be amended, modified or replacedreplaced by this Section 7.11(a).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Overseas Shipholding Group Inc)
Financing. (a) Subject to the terms (i) Each of Parent and conditions of this Agreement, AGCO Merger Sub shall use its reasonable best efforts to obtain the Committed Financing (taking into account any reductions thereof pursuant to Section 7.15(b)(A)) on the terms and conditions set forth (including the flex provisions) described in the Commitment Letter Financing Letters pursuant to the terms thereof and satisfy the conditions to the Financing as described in the Financing Letters (including the repayment of any “flex” provisions in indebtedness to the Fee Letterextent such repayment is a condition to the Financing) or on such other terms and conditions that are acceptable to AGCO so long as such other terms and conditions constitute Permitted Financing Terms, and AGCO shall not permit any termination, amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Commitment Letter Financing Letters or the Fee Letter (any fee or following entry into definitive documents other letter or agreement relating to the Committed Financing, such definitive documents) thereto if such termination, amendment, modification modification, waiver or waiver replacement (A) with respect to the Commitment Letter or the Fee Letter or such definitive documents, as applicable, reduces the aggregate amount of the Committed Financing (including by increasing the amount of fees to be paid or original issue discount unless discount) to the Committed Financing is increased extent that Parent would not be able to fund the aggregate Merger Consideration, the aggregate Option Consideration, the aggregate Company RSU Consideration and all fees, expenses and other amounts contemplated to be paid by a corresponding amount Parent, Merger Sub or the Committed Financing is otherwise made available Surviving Company on the Closing Date pursuant to fund such fees or original issue discount) from that contemplated in the Commitment Letter or such definitive documents (other than in accordance with its terms or unless concurrently replaced by commitments from other financing sources of from proceeds of other sources of financing or cash or otherwise in accordance with Section 7.15(b)(A)), this Agreement or (B) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Committed receipt of Financing, or otherwise expands, amends or modifies any other provision of the Financing Letters, in a manner that would, in the case of this subclause (B), would reasonably be expected to (x) delay or prevent or materially delay make less likely the Closing or the availability funding of the Committed Financing (or satisfaction of the conditions to the Financing) on the Closing Date taking into account the expected timing of the Closing Date, taking into account the expected timing of the Marketing Period, or (y) adversely impact the ability of AGCO Parent or Merger Sub, as applicable, to enforce its rights against the other parties to the Commitment Letter in Financing Letters or the definitive agreements with respect thereto; provided, that Parent and Merger Sub may amend any material respect (of the terms Financing Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed such Financing Letters as of the date of this Agreement to the extent that the commitments of any of the Lead Lenders to provide all of the Financing are not terminated or reduced as a result of any such amendment, modification or waiver not in violation of these clauses (A) and (B), the “Permitted Financing Terms”); provided, that subject to compliance with the other provisions of this Section 7.15, AGCO may amend the Commitment Letter or such definitive documents to correct typographical errors, add additional lenders, arrangers and agents or reallocate commitments or assign or reassign titles or roles to, or between or among, any entities party thereto. AGCO Parent shall promptly deliver to Trimble the Company copies of any such termination, amendment, modification modification, waiver or replacementreplacement of any of the Financing Letters or of any fee or other letter or agreement relating thereto (redacted as in the case of such fee or other agreement in a manner contemplated by Section 3.6). For purposes of this Section 7.15 Parent and Section 5.6 and the definitions of, and references Merger Sub shall use reasonable best efforts to, the Financing, any Committed Financing Source, any Financing Source, references subject to “Committed Financing” shall include the financing contemplated provision by the Commitment Letter (Company of the Required Information, cause the Marketing Period to commence on or definitive financing documents related thereto) as permitted by this Section 7.15(a) to be amendedbefore July 16, modified or replaced and references to “Commitment Letter” shall include such document as permitted by this Section 7.15(a) to be amended, modified or replaced2012.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Sun Healthcare Group Inc)
