Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD), Agreement and Plan of Merger (Thunder Bridge Acquisition LTD)
Financing. (a) Each Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, advisable or proper to obtain the proceeds of the Equity Financing contemplated by the Equity Commitment Letter on or advisable prior to arrange, obtain and consummate the Debt Financing Closing Date on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Equity Commitment Letter, including (iia) negotiate maintaining in full force and enter into definitive agreements effect the Equity Commitment Letter in accordance with respect to the Debt Financing on the terms thereof and subject only to the conditions complying with its obligations thereunder and (including the “market flex” provisionsb) set forth in the Debt Commitment Letter (or satisfying on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the a timely basis all conditions to the funding of the Debt Equity Financing set forth in the Equity Commitment Letter, if any, that are within Parent’s or Merger Sub’s control, in each case, no later than at the Closing (excluding conditions that, by their terms, cannot be satisfied until the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions at the Closing, reduce ). In the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) event that all conditions and covenants applicable to contained in the Equity Commitment Letter have been satisfied, Parent and Merger Sub in shall use commercially reasonable efforts to cause Parent Sponsor to comply with its obligations thereunder, including to fund the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Equity Financing. Parent and Merger Sub contained shall keep the Company informed in such Debt reasonable detail of the status of its efforts to arrange the Equity Financing and any other financing upon the written request of the Company and shall give the Company prompt written notice of (i) any breach by any party to the Equity Commitment Letter of any material provision which Parent or such definitive agreements related thereto, Merger Sub has become aware or (ivii) upon the satisfaction or waiver of the conditions to Parent’s and or Merger Sub’s obligations good faith belief, for any reason, that it may no longer be able to consummate obtain all or any portion of the Closing, consummate Equity Financing contemplated by the Debt Financing at the Closing, (v) enforce its rights under the Debt Equity Commitment Letter on the terms and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingconditions described therein.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Vapotherm Inc), Agreement and Plan of Merger (Vapotherm Inc), Agreement and Plan of Merger (Army Joseph)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Financing Commitment Letter (provided that Parent and Merger Sub may replace or amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as promptly as practicable after of the date hereof, or otherwise so long as the terms would not materially adversely impact the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Commitment, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained to obtaining the Debt Financing set forth in such the Debt Financing Commitment Letter or such (including by consummating the equity financing pursuant to the terms of the Equity Financing Commitments), (iii) enter into definitive agreements related thereto, with respect thereto on the terms and conditions contemplated by the Financing Commitments or on other terms that would not adversely impact the ability or likelihood of Parent or Merger Sub to consummate the transactions contemplated hereby and (iv) upon consummate the satisfaction Financing at or waiver prior to the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to Parent’s and Merger Sub’s obligations arrange to obtain alternative financing from alternative sources in an amount sufficient to consummate the Closingtransactions contemplated by this Agreement as promptly as practicable following the occurrence of such event; provided, consummate that such alternative financing shall be on terms and conditions materially no less favorable than those provided in the Debt Financing at Commitment, or otherwise on terms and conditions acceptable to Parent. Parent shall give the ClosingCompany prompt notice of any material breach by any party to the Financing Commitments, (v) enforce of which Parent or Merger Sub becomes aware, or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its rights under efforts to arrange the Debt Commitment Letter Financing and the definitive agreements relating provide copies of all documents related to the Debt Financing (other than any fee letters and (viancillary documents subject to confidentiality agreements) otherwise comply to the Company. The Company hereby consents to the use of its and its Subsidiaries’ names and logos in connection with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (McJunkin Red Man Corp), Agreement and Plan of Merger (McJunkin Red Man Holding Corp), Agreement and Plan of Merger (Goldman Sachs Group Inc)
Financing. (a) Each of Parent Parent, First Merger Sub and Second Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper necessary or advisable to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only conditions described in or contemplated by the Financing Commitments prior to when the conditions to the conditions (including the “market flex” provisions) Mergers set forth in Article VIII (other than those conditions that by their terms must be satisfied at the Debt Commitment Letter as promptly as practicable after the date hereofClosing) are satisfied, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, Financing Commitments; (ii) negotiate satisfy on a timely basis all conditions and covenants applicable to Parent, First Merger Sub and Second Merger Sub in the Financing Commitments and otherwise comply with its obligations in each case thereunder; (iii) enter into definitive agreements with respect to the Debt Financing Commitments on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, contemplated thereby; (iv) upon in the satisfaction or waiver of event that all conditions in the conditions Financing Commitments have been satisfied, cause the Persons providing Financing under the Financing Commitments to Parent’s fund the Financing and Merger Sub’s obligations to consummate the Closing, consummate Financing contemplated by such Financing Commitments on or prior to the Debt Financing at date the Closing, Closing is required to occur pursuant to Section 2.02; and (v) enforce its rights under the Debt Commitment Letter Financing Commitments, except, in the case of clauses (i) through (v) above, to the extent (and solely to the extent) Parent or one or more of its Subsidiaries has issued in one or more offerings any debt or equity securities in lieu of the Financing on or prior to the Closing Date or otherwise will have sufficient cash at the Closing, in each case in an amount such that Parent, First Merger Sub, Second Merger Sub, the Surviving Corporation and the definitive agreements relating Surviving Entity will be able to satisfy all of the Debt Financing and (vi) otherwise comply with payment obligations of Parent’s and , First Merger Sub’s covenants and other obligations under , Second Merger Sub, the Debt Commitment Letter Surviving Corporation and the definitive agreements relating Surviving Entity contemplated hereunder in connection with the Closing. Notwithstanding the foregoing, in no event shall Parent be required to pursue litigation against the Debt FinancingFinancing Sources in respect of this clause (a) or otherwise.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Grail, LLC), Agreement and Plan of Merger (Grail, LLC), Agreement and Plan of Merger (Illumina, Inc.)
Financing. (a) Each of Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper advisable or advisable desirable to arrange, obtain arrange and consummate the Debt Financing on the terms and subject only conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the conditions Commitment Letter and the Fee Letter (including the any “market flex” provisions) set forth provisions that are contained in the Debt Commitment Letter as promptly as practicable after the date hereofFee Letter), including using reasonable best efforts to (i) maintain satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent or Merger Sub set forth in effect the Commitment Letter and comply with the Debt Commitment LetterFee Letter (including definitive agreements related thereto) that are within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Financing, (ii) maintain in effect the Commitment Letter (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letter in accordance herewith), comply with its obligations pursuant to the Commitment Letter, diligently enforce their rights under the Commitment Letter and, with respect to the Commitment Letter, negotiate and enter into definitive agreements with respect thereto on terms and conditions no less favorable to Parent and Merger Sub than those described in or contemplated in the Commitment Letter and the Fee Letter (including any “market flex” provisions contained in the Fee Letter), (iii) consummate the Financing at or prior to the Debt Financing Closing, (iv) ensure the participation by a Representative of Parent and Merger Sub in, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (v) comply with Parent’s obligations under the Commitment Letter and the Fee Letter. If funds in the amounts and on the terms set forth in a Commitment Letter become unavailable to Parent or Merger Sub on the terms and subject only to the conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added to any Financing remaining available to Parent, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Financing that are not contained in the Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Financing (or the satisfaction of the conditions to obtaining the Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable less favorable to Parent and Merger Sub than those in the Debt Commitment Letter and the definitive agreements related thereto orFee Letter; provided, further, that if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Financing”, “Commitment Letter” and “Fee Letter” (and other like terms in this Agreement) shall be deemed to also include such Debt Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letter have been satisfied or waived, Parent shall use its reasonable best efforts to cause the Persons providing the Financing to fund such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations Financing required to consummate the Closing, consummate Transactions on the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingClosing Date.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Wesco International Inc), Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Wesco International Inc)
Financing. (a) Each Subject to the terms and conditions of this Agreement, Parent shall (and Merger Sub shall cause its Affiliates to) use its commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the pursuant to any “market flex” provisionsprovisions in any fee letter relating to the Debt Financing) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Letters, including using commercially reasonable best efforts to (i) comply with its obligations under (A) the Equity Funding Letters and (B) the Debt Commitment Letters and any definitive agreements related thereto, (ii) maintain in effect and comply with the Financing Letters (subject to Parent’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith) until the earliest of the consummation of the Transactions, the termination of this Agreement or the time at which any Alternative Debt Commitment LetterFinancing is available, (iiiii) negotiate and enter into definitive agreements with respect to the Debt Financing on the a timely basis on terms and subject only to the conditions (including the “market flex” flex provisions) set forth contained in the Debt Commitment Letter (Letters or on other terms as consented otherwise not materially less favorable with respect to by conditionality to Parent in the Company, such consent not to be unreasonably withheld, delayed or conditioned), aggregate than those contained in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateCommitment Letters, (iiiiv) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants contained in the Financing Letters that are applicable to Parent and Merger Sub in the Debt Commitment Letter its Affiliates and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon including the satisfaction payment of any commitment, engagement or waiver of the conditions placement fees required as a condition to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closingor Equity Financing, as applicable, (v) if all conditions to the Debt Financing and the Equity Financing have been satisfied in accordance with the Debt Commitment Letters and Equity Funding Letters, respectively, cause the Persons committing to fund the applicable Financing to fund such Financing at the Closing and (vi) enforce its rights under the Debt Commitment Letter Financing Letters and the definitive agreements relating to the Financing. To the extent reasonably requested by the Company in writing from time to time, Parent shall keep the Company reasonably informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating provide to the Company copies (including material drafts) of the material Debt Financing.Financing documents. Parent shall give the Company prompt notice upon
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Ares Management LLC), Agreement and Plan of Merger (Cincinnati Bell Inc), Agreement and Plan of Merger (Cincinnati Bell Inc)
Financing. (a) Each of Parent and Merger Sub shall, and shall cause their respective Affiliates to, use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after Financing Letters (or on other terms and conditions that are acceptable to Parent, subject to the date hereofProhibited Financing Modifications) no later than the Closing Date, including by using reasonable best efforts to (i) maintain (and cause Topco and the Guarantor to maintain) in effect and comply with the Debt Commitment LetterFinancing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing (the “Definitive Financing Agreements”) in a timely (taking into account the anticipated timing of the Closing and the Marketing Period) and diligent manner (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith), (ii) negotiate and enter into definitive agreements the Definitive Financing Agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) and subject to the conditions set forth in the Debt Commitment Letter Letters (or on other terms as consented and conditions that are acceptable to by the CompanyParent, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions subject to the funding of the Debt Prohibited Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateModifications), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing and the Marketing Period) (or obtain the a waiver of) all conditions and covenants applicable to (and within the control of) Parent and Merger Sub in the Debt Commitment Letter and Financing Letters and, to the definitive agreements related thereto orextent entered into prior to the Closing, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoDefinitive Financing Agreements, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closingtransactions contemplated by this Agreement, including the Merger, consummate the Debt Financing and cause the Financing Sources, the Guarantor and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating Financing Letters and, to the Debt extent entered into prior to the Closing, the Definitive Financing Agreements and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Financing Letters and, to the extent entered into prior to the Closing, the Definitive Financing Agreements. Without limiting the generality of the foregoing, in the event that all conditions contained in the Financing Letters or, to the extent entered into prior to the Closing, the Definitive Financing Agreements (other than the consummation of the Merger and those conditions that by their nature are to be satisfied or waived at Closing) have been satisfied, Parent shall use its reasonable best efforts to cause the Financing Sources and the Guarantor to comply with their respective obligations thereunder, including to fund the Financing, including by enforcing its rights under the Financing Letters, if necessary. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.13 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing from any source other than the Guarantor, or in any amount in excess of that contemplated by the Equity Commitment Letters, or (y) incur or pay any fees to obtain a waiver of any term of the Debt Commitment Letters or pay any material fees that are, in the aggregate, in excess of those contemplated by the Equity Commitment Letter and or the definitive agreements relating Debt Commitment Letters (including any market “flex” provisions contained therein). Without limiting the generality of the foregoing, to the extent necessary in order to consummate the Closing on the Closing Date, Parent shall deliver a Pre-Marketing Notification (as defined in the Debt FinancingCommitment Letters) and exercise its rights to reallocate the commitments as among the facilities contemplated by the Debt Commitment Letters.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CD&R Associates VIII, Ltd.), Agreement and Plan of Merger (Cornerstone Building Brands, Inc.)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or shall cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable necessary to arrange, obtain and consummate arrange the Debt Financing on the terms and subject only conditions described in the Debt Commitment Letters, including: (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including, as necessary, the “flex” provisions contained in any related fee letter) (or on other terms and conditions agreed by Parent, the Company and the Financing Sources) by the Closing Date, and (ii) to satisfy or cause to be satisfied (or, if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s control and to comply or cause to be complied with all of its obligations pursuant to the Debt Commitment Letters and the definitive agreements related thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or the availability at Closing of sufficient aggregate proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent and Merger Sub shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by taking enforcement action to cause the “market flex” provisions) Financing Sources to provide the Debt Financing). Each of Parent and Merger Sub shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letters. Parent shall give the Company prompt notice of any material breach by any party to the Debt Commitment Letters or the definitive agreements related thereto of which Parent has become aware or any termination of any of the Debt Commitment Letters or such definitive agreements, to the extent such breach or termination could reasonably be expected to prevent or materially delay the Closing or otherwise result in sufficient proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement not being available at the Closing. In the event that any portion of the Debt Financing becomes unavailable and such portion is necessary to consummate the transactions contemplated by this Agreement (except in accordance with the express terms set forth in the Debt Commitment Letters or unless concurrently replaced on a dollar-for-dollar basis by commitments subject to substantially the same conditions as those set forth in the Debt Commitment Letter from other financing sources or from proceeds of other sources of financing or cash), Parent and Merger Sub shall (1) use their reasonable best efforts to obtain, as promptly as practicable after following the date hereofoccurrence of such event, including using reasonable best efforts alternative debt financing for any such portion from alternative debt sources (“Alternative Financing”) in an amount that will enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement and that does not contain additional (ior changes to the) maintain in effect and comply with the Debt Commitment Letter, (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 (delivered to the Company on or on other terms as consented prior to by the Company, such consent not to be unreasonably withheld, delayed or conditioned)date of this Agreement that, in each case, could reasonably be expected to adversely affect the ability of Parent or Merger Sub to timely consummate the transactions contemplated by this Agreement and (2) promptly notify the Company of such unavailability and the reason therefor. If obtained, Parent shall deliver to the Company true and complete copies of all agreements (including redacted copies of engagement and fee letters, removing only fee amounts, market “flex” provisions and certain other terms (none of which concern or would adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such alternative source shall have committed to provide Parent or the Surviving Corporation with Alternative Financing. Parent and Merger Sub shall not, without the Company’s prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreements related thereto unless the terms of such Debt Commitment Letter or definitive agreements related thereto, in each case as so amended, modified or waived, are substantially similar to those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall not expand on be as good as or better for Parent and Merger Sub than those in the conditions Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that, in the case of amendments or modifications of any Debt Commitment Letter or a definitive agreement relating thereto, the foregoing shall only apply if such amendment or modification (x) could reasonably be expected to (I) adversely affect the ability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or (II) make the timely funding of the Debt Financing at or the Closingsatisfaction of the conditions to obtaining the Debt Financing less likely to occur, reduce (y) reduces the aggregate amount of the Debt Financing available to be funded at or (z) materially and adversely affects the Closing, impair the validity ability of the Debt Financing Parent or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in to enforce their rights against other parties to the Debt Commitment Letter Letters, it being understood and agreed that in any event, Parent may amend the Debt Commitment Letters or the definitive agreements related relating thereto orto (x) add lenders, if necessary arrangers, bookrunners, agents, managers or deemed advisable by Parent, seek similar entities that have not executed the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver Letters as of the conditions date of this Agreement and consent to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate assignment after the Debt Financing at the Closing, (v) enforce its rights date of this Agreement of lending commitments under the Debt Commitment Letter and Letters to other lenders, or (y) increase the definitive agreements relating to aggregate amount of the Debt Financing. Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing and (vi) otherwise comply Source with Parentrespect to such Financing Source’s and Merger Sub’s covenants and other obligations failure or anticipated failure to fund its commitments under the any Debt Commitment Letter and Letters or definitive agreement in connection therewith. Parent shall keep the definitive agreements relating Company reasonably informed on a current basis of the status of its efforts to consummate the Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aetna Inc /Pa/), Agreement and Plan of Merger (CVS HEALTH Corp)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable actions and best efforts to do, or cause to be done, all reasonable things necessary, proper or advisable to arrangeobtain the proceeds of the Financing on, obtain and consummate in the Debt Financing on case of clause (iii)(y) below, subject to clauses (A) through (C) of clause (iii) below, the terms and subject only to conditions described in the conditions Commitment Letters (including including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter) set forth in the Debt Commitment Letter as promptly as practicable after possible (taking into account the expected timing of the Marketing Period), but in any event on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using reasonable best efforts with respect to (i) causing the Equity Investors to maintain in effect and comply with the Equity Commitment Letter, (ii) maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into on the Closing Date definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) (x) consistent with the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (including, as necessary, the “flex” provisions contained in any related fee letter) or (y) if available, on other terms as consented that (A) are acceptable to Parent in its sole discretion, (B) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by the Company, such consent not to be unreasonably withheld, delayed or conditionedSection 5.12(b), in each case, which shall not expand on and (iv) taking into account the conditions to the funding expected timing of the Debt Financing at Marketing Period, satisfying (or, if reasonably required to obtain the ClosingFinancing, reduce seeking the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iiiwaiver of) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto orDefinitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event that all conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be satisfied at the Closing) have been satisfied or waived, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoshall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, (iv) upon the satisfaction or waiver of the conditions including to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate fund the Debt Financing at the Closing(including, (v) enforce subject to Section 8.7(c), by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its rights under the Debt Commitment Letter and the definitive agreements relating to portion of the Debt Financing and (vi) or otherwise comply with Parent’s and Merger Sub’s covenants and other its obligations under the Debt Commitment Letter or Definitive Agreements). Each of Parent and Merger Sub shall use its reasonable best efforts to comply with its respective obligations, and enforce its respective rights, under the definitive agreements relating to the Debt FinancingCommitment Letters and Definitive Agreements in a timely and diligent manner.
Appears in 2 contracts
Samples: And (At Home Group Inc.), Agreement and Plan of Merger (At Home Group Inc.)
Financing. (a) Each of Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper advisable or advisable desirable to arrange, obtain arrange and consummate the Debt Financing on the terms and subject only conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the conditions Commitment Letters and the Fee Letter (including the any “market flex” provisions) set forth provisions that are contained in the Debt Commitment Letter as promptly as practicable after the date hereofFee Letter), including using reasonable best efforts to (i) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent or Merger Sub set forth in the Commitment Letters and the Fee Letter (including definitive agreements related thereto) that are within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing, (ii) maintain in effect and the Commitment Letters (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letters in accordance herewith), comply with its obligations pursuant to the Commitment Letters, diligently enforce their rights under the Commitment Letters and, with respect to the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable no less favorable to Parent and Merger Sub than those described in or contemplated in the Debt Commitment Letter and the definitive agreements related thereto orFee Letter (including any “market flex” provisions contained in the Fee Letter), if necessary (iii) consummate the Financing at or deemed advisable prior to the Closing, (iv) ensure the participation by Parent, seek the waiver a Representative of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoin, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (ivv) upon the satisfaction or waiver of the conditions to Parent’s and comply with Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating Fee Letter. If funds in the amounts and on the terms set forth in a Debt Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Debt Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added with the Equity Financing, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Debt Financing that are not contained in the Debt Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Debt Commitment Letter and the Fee Letter; provided, further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Debt Financing”, “Financing”, “Debt Commitment Letter”, “Fee Letter” and “Commitment Letters” (and other like terms in this Agreement) shall be deemed to also include such Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letters have been satisfied or waived, Parent shall cause the Fund to fund the Equity Financing and shall use its reasonable best efforts to cause the Persons providing the Debt Financing to fund such Debt Financing required to consummate the Transactions on the Closing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Anixter International Inc)
Financing. (a) Each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to take, or shall use reasonable best efforts to cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable necessary to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions including (including the “market flex” provisionsi) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (iA) maintain in effect and comply with the Debt Commitment LetterLetter and in all material respects comply with all of their respective obligations thereunder and (B) negotiate, (ii) negotiate and enter into and deliver the definitive agreements with respect to the Debt Financing thereto on the terms and subject only conditions not less favorable in the aggregate, to the conditions (including the “market flex” provisions) set forth Parent than those contained in the Debt Commitment Letter (or on other terms including, as consented to necessary, the “market flex” provisions contained in any related fee letter) by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, and (iiiii) using reasonable best efforts to satisfy on a timely basis (or if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s (or its Subsidiary’s) control and covenants applicable to comply with all of its obligations pursuant to the Debt Commitment Letters or other definitive agreements related thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or the availability at the Closing of sufficient aggregate proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent and Merger Sub in shall, and shall cause their respective Subsidiaries to, use reasonable best efforts to cause the Financing Sources to fund the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations Financing required to consummate the Closing, consummate transactions contemplated by this Agreement and to pay related fees and expenses on the Debt Financing at the Closing, (v) Closing Date. Parent shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letter Letters. Parent and/or Merger Sub shall pay, or cause to be paid, as the same shall become due and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants payable, all fees and other obligations amounts under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingLetters.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Celgene Corp /De/), Agreement and Plan of Merger (Bristol Myers Squibb Co)
Financing. (a) Each of Parent and Merger Sub Purchaser shall use reasonable best efforts to take, or use reasonable efforts to cause to be taken, all reasonable actions actions, and to do, or use reasonable efforts to cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the proceeds of the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after on or prior to the date upon which the Closing is required to occur pursuant to the terms hereof, taking into account the anticipated timing of the Marketing Period, including using reasonable best efforts to by (i) using reasonable efforts to maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into negotiating definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) consistent with the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (including, as necessary, any modifications, adjustments or amendments thereto pursuant to the “flex” provisions contained in any Fee Letter), or on other terms as consented to by the Company, such consent which do not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, (x) reduce the aggregate amount of the Debt Financing such that the aggregate funds available to Purchaser at Closing would not be funded sufficient to satisfy the Financing Uses or (y) impose new or additional conditions precedent (other than conditions precedent that have already been satisfied at the Closing, impair time they are so added) or adversely modify any existing conditions precedent to the validity receipt of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, and (iii) satisfy satisfying on a timely basis (or obtain taking into account the waiver ofanticipated timing of the Marketing Period) all conditions and covenants precedent to funding of the Debt Financing applicable to Parent and Merger Sub Purchaser in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek Definitive Agreements. In the waiver of event that all conditions applicable to Parent and Merger Sub contained in such any Commitment Letter or the Definitive Agreements (other than the availability of the Escrow Amount, the funds available to Purchaser as guaranteed under the Guaranty or any other funds of Purchaser or any Affiliate thereof) have been satisfied, Purchaser shall use reasonable efforts to cause the Debt Financing Sources to comply with their respective obligations, including to fund the Debt Financing required to finance the Financing Uses in full. Purchaser shall give Seller prompt written notice of (i) any termination or repudiation of the Debt Commitment Letter or such definitive agreements related thereto, Definitive Agreements by any party thereto of which Purchaser has Knowledge or (ivii) upon the satisfaction any breach or waiver default of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter or Definitive Agreements by any party thereto of which Purchaser has Knowledge that could reasonably be expected to (A) materially and adversely affect the definitive agreements relating ability or likelihood of Purchaser to timely consummate the transactions contemplated by this Agreement or (B) make the timely funding of the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under or satisfaction of the conditions precedent to obtaining the Debt Commitment Letter and Financing prior to or substantially concurrently with the definitive agreements relating Closing less likely to the Debt Financingoccur.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Cit Group Inc)
Financing. (a) Each of Parent Parent, Sub and Merger Sub Missouri shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Parent Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Parent Preferred Equity Funding Letter and the Parent Commitment Letter (provided that Parent, Sub and Missouri may (x) replace or amend the Parent Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Parent Commitment Letter as promptly as practicable after of the date hereof, or otherwise or (y) replace or amend the Parent Preferred Equity Funding Letter to add investors which had not executed the Parent Preferred Equity Funding Letter as of the date hereof, or otherwise, in each case so long as the terms would not reasonably be expected to adversely impact the ability of Parent, Sub or Missouri to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterParent Financing commitments, (ii) satisfy on a timely basis all conditions applicable to Parent, Sub and Missouri to obtaining the Parent Financing set forth therein, and (iii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to conditions contemplated by the conditions (including Parent Preferred Equity Funding Letter and the “market flex” provisions) set forth in the Debt Parent Commitment Letter (or on other terms that would not adversely impact the ability of Parent, Sub or Missouri to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated and (iv) consummate the Parent Financing at or prior to the Final Condition Satisfaction Date. If any portion of the Parent Financing becomes unavailable on the terms and conditions contemplated in the Parent Preferred Equity Funding Letter or the Parent Commitment Letter, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on comparable or more favorable terms to Parent (as consented determined in the reasonable judgment of Parent) in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event. Parent shall give the Company prompt notice of any material breach or alleged material breach by any party to the Parent Preferred Equity Funding Letter or the Parent Commitment Letter of which Parent, Sub or Missouri becomes aware, or any termination of the Parent Preferred Equity Funding Letter or the Parent Commitment Letter. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Parent Financing, and shall not permit any material amendment or modification to be made to, or any waiver of any material provision or remedy under, the Parent Preferred Equity Funding Letter or the Parent Commitment Letter without first consulting with the Company or, if such amendment would or would be reasonably expected to materially and adversely affect or delay in any material respect the ability of Parent, Sub or Missouri to consummate the transactions contemplated by this Agreement, without first obtaining the Company, such ’s prior written consent (not to be unreasonably withheld, delayed withheld or conditioneddelayed), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ashford Hospitality Trust Inc), Agreement and Plan of Merger (CNL Hotels & Resorts, Inc.)
Financing. (a) Each of Parent and Merger Sub shall use use, and cause its Affiliates to use, its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only conditions described in the Financing Commitments (or on terms no less favorable to Parent, Sub and the Company (or the Surviving Corporation) with respect to the conditions conditionality, timing, availability, and aggregate amount of the Financing (including the “market flex” provisionsamounts to be funded thereunder at the earlier of the Offer Closing or the Merger Closing (including the amount of fees to be paid or original issue discount))), including using commercially reasonable efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a material breach thereof by the Debt Financing provider(s) set forth thereunder. Neither Parent nor Sub shall permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Equity Commitment Letter (other than to increase the amount of the Equity Financing). Neither Parent nor Sub shall permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter (or agree to any change referred to in Paragraph 1.(d) of Schedule I to the GE Debt Commitment Letter or in Clause (i)(d) of Exhibit A to the Xxxxx Fargo Debt Commitment Letter), if such amendment, modification or waiver (or change) reduces the aggregate amount of the Debt Financing or reduces the aggregate amount of Debt Financing to be funded thereunder at the earlier of the Offer Closing or the Merger Closing (in either case, including by changing the amount of fees to be paid or original issue discount) or reduces or delays the availability of the Debt Financing (in each case, including by way of altering any borrowing base or reserve or otherwise), amends the conditions precedent to the Debt Financing in a manner that would reasonably be expected to delay or prevent the Offer Closing Date or the Merger Closing Date or make the effectiveness or funding of the Debt Financing as contemplated in the Debt Commitment Letter less likely to occur, adversely impacts the ability of any Party hereto to enforce or cause the enforcement of the rights of Parent or Sub under any of the Debt Commitment Letter or the definitive agreements relating thereto or imposes additional material obligations on the Company, the Company Subsidiaries or Affiliates of the Company prior to the Offer Closing Date or the Merger Closing Date; provided, however, that Parent and Sub may amend or restate the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as promptly parties thereto who had not executed the Debt Commitment Letter as practicable after of the date hereof, including using reasonable best efforts ; provided further that neither Parent nor Sub shall be required to (i) maintain in effect and comply with consent to the waiver of any condition precedent that has not been satisfied under the Debt Commitment Letter. Parent shall promptly deliver to the Company copies of any such amendment, modification or waiver. Each of Parent and Sub shall use its reasonable best efforts (iii) to maintain in effect the Financing Commitments and to negotiate and enter into definitive agreements with respect to the Debt Financing Commitment Letter on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on other terms as consented no less favorable to by Parent, Sub and the Company, such consent not to be unreasonably withheld, delayed Company (or conditionedthe Surviving Corporation)), in each case, which shall not expand on the conditions (ii) to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained it in such Debt Commitment Letter or such definitive agreements related theretothat are within its control, (iii) upon satisfaction of such conditions (without waiver thereof not consented to by Parent), to consummate the Financing at the Offer Closing (with respect to amounts required to consummate the Offer, if the Offer Termination has not occurred) and the Merger Closing (with respect to amounts required to consummate the Merger and make other payments due at such time in accordance with the terms hereof) and (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other its obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingFinancing Commitments.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (TLB Merger Sub Inc.), Agreement and Plan of Merger (Talbots Inc)
Financing. (a) Each of Parent shall use, and Merger Sub shall use cause its affiliates to use, reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain keep the financing commitment in full force and consummate effect and to arrange the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Commitment, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) to negotiate and enter into into, and keep in effect, the definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Financing Commitment Letter (or on other terms as consented acceptable to Parent, provided such terms do not contain any conditions to funding on the Offer Closing Date and the Closing Date that are not set forth in the Financing Commitment and would not otherwise reasonably be expected to impair or delay the consummation of the Financing), (ii) to satisfy (or cause its affiliates to satisfy) on a timely basis all conditions applicable to Parent and its subsidiaries to obtaining the Financing set forth in the Financing Commitment that are within their control and to otherwise comply with all of their obligations under the Financing Commitments, and (iii) to consummate the Financing contemplated by the Company, such consent not to be unreasonably withheld, delayed Commitment Letter at or conditioned), in each case, which shall not expand on the conditions prior to the funding of the Debt Financing at Offer Closing and the Closing, reduce as applicable, including using its reasonable best efforts to cause the aggregate amount lenders and the other persons providing such Financing to fund the Financing required to consummate the Offer at the Offer Closing and the Merger at the Closing (including seeking specific performance to cause the Financing to be consummated in accordance with the Financing Commitments). Parent and Merger Sub shall keep the Financing Commitment in full force and effect and not modify, amend, waive, supplement or otherwise alter the Financing Commitment or the definitive agreements with respect thereto or any of the Debt terms thereof, except that Parent shall have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of their rights under, the Financing available to be funded at Commitment or the Closingdefinitive agreements with respect thereto, impair the validity and/or substitute other debt or equity financing for all or any portion of the Debt Financing Commitment from the same and/or alternative financing sources; provided, that any such amendment, replacement, supplement or other modification to or waiver of any provision of the Financing Commitment or such definitive agreements that amends the Financing Commitment and/or substitution of all or any portion of the Financing shall not (A) expand upon the conditions precedent to the Financing as set forth in the Financing Commitment or (B) prevent, impede or delay the consummation of the Debt Offer and the Merger and the other Transactions. Parent shall be permitted to reduce the amount of Financing under the Financing Commitment or the definitive agreements with respect thereto in its reasonable discretion; provided, that Parent shall not reduce the Financing to an amount committed below the amount that is required to consummate the Offer and the Merger and the other Transactions; and provided further that such reduction shall not (I) expand upon the conditions precedent to the Financing as set forth in the Financing Commitment or (II) prevent, impede or delay the consummation of the Offer and the Merger and the other Transactions. In the event that any portion of the Financing becomes unavailable or Parent becomes aware of any event or circumstance that makes any portion of the Financing unavailable, in each case, on the Closing Dateterms and conditions set forth in the Financing Commitment and such portion is reasonably required, together with the financial resources of Parent, including cash on hand, marketable securities and the proceeds of loans under existing revolving credit facilities of Parent or its subsidiaries, to consummate the Offer and the Merger and the other Transactions, Parent shall notify the Company within 24 hours, and Parent shall use its reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (iii“Alternative Financing”) satisfy on a timely basis terms that will still enable Parent to consummate the Transactions; provided, that without the prior written approval of the Company, no such alternative financing shall be on terms and conditions (or obtain including any “flex” provisions and conditions to funding) that are not, in the waiver of) all conditions and covenants applicable aggregate, at least as favorable to Parent and Merger Sub the Company (as determined in the Debt reasonable judgment of Parent) as those in the Financing Commitment Letter and otherwise in compliance with this Agreement. Parent shall deliver to the definitive Company true and complete copies of all agreements related thereto orto such Alternative Financing (excluding fee letters and engagement letters, if necessary except to the extent that such documents contain any conditions to funding or deemed advisable “flex” provisions (excluding provisions related solely to fees and economic terms agreed to by Parentthe parties)). Parent shall refrain (and shall cause its affiliates to refrain) from taking, seek the waiver directly or indirectly, any action that would reasonably be expected to result in a failure of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver any of the conditions to Parent’s and Merger Sub’s obligations to consummate contained in the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the or in any definitive agreements relating agreement related to the Debt Financing. Parent shall keep the Company reasonably informed on a current basis of the status of its efforts to obtain the Financing, promptly provide the Company copies of all documents related to the Financing (excluding fee letters and engagement letters, except to the extent that such documents contain any conditions to funding, “flex” provisions or other substantive provisions (excluding provisions related solely to fees and economic terms agreed to by the parties)) or regarding the terms and conditions of the Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under give the Debt Commitment Letter and the definitive agreements relating Company notice of any material breach by any party to the Debt FinancingFinancing Commitment of which Parent becomes aware or any termination of the Financing Commitment, such notice to be given within 24 hours after Parent becomes so aware.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (International Coal Group, Inc.), Agreement and Plan of Merger (Arch Coal Inc)
Financing. (a) Each of Parent shall, and Merger Sub shall cause the Parent Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all reasonable actions actions, and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain arrange and consummate the Debt Financing or any Substitute Financing in an amount sufficient, together with cash on hand that replaces or supplements the Financing consistent with the terms set forth in this Section 7.11, to consummate the Merger and subject only to the conditions other transactions contemplated hereby (including the “market flex” provisionspayment of the Cash Consideration, any other amounts required to be paid pursuant to Article I, any Indebtedness of the Company (including the Company Credit Agreement) set forth required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Debt Commitment Letter as promptly as practicable after Merger and any premiums and fees incurred in connection therewith, and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the date hereofMerger and the other transactions contemplated hereby) no later than the Closing, including including, using reasonable best efforts to (i) (A) maintain in effect the Commitment Letter and comply in all material respects with the Debt Commitment Letterall of their respective obligations thereunder, (iiB) negotiate and negotiate, enter into and deliver definitive agreements with respect to the Debt Financing on (the “Financing Agreements”) reflecting the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on or, to the extent not included in the Commitment Letter, with other terms as consented agreed by Parent and the Financing Parties, provided that, any changes to by terms contained in the Company, such consent not Commitment Letter shall be subject to be unreasonably withheld, delayed or conditionedthe restrictions on amendments of the Commitment Letter set forth below), so that such agreements are in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on effect through the Closing Date, and (iiiC) enforce their rights under the Commitment Letter and (ii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to the Financing and the Financing Agreements related thereto that are in Parent’s (or the Parent Subsidiaries’) control. In the event that all conditions set forth in Section 8.01 and Merger Sub’s obligations Section 8.02 have been satisfied or waived or, upon funding of the Financing, shall have been satisfied or waived, Parent shall, and shall cause the Parent Subsidiaries to, use reasonable best efforts to cause the Persons providing the Financing to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the ClosingMerger and the other transactions contemplated hereby (including the payment of the Cash Consideration, any other amounts required to be paid pursuant to Article I, any Indebtedness of the Company (including the Company Credit Agreement) required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and any premiums and fees incurred in connection therewith, and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby). Parent and/or Intermediate Holdco shall pay, or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Commitment Letter. Each of Parent and Intermediate Holdco acknowledges and agrees that the obtaining of the Financing is not a condition to the Closing and reaffirms its obligation to consummate the Debt Financing at transactions contemplated by this Agreement irrespective and independently of the Closingavailability of the Financing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating subject to the Debt Financing applicable conditions set forth in Sections 8.01 and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing8.02.
Appears in 2 contracts
Samples: Management and Advisory Agreement (Gannett Co., Inc.), Management and Advisory Agreement (New Media Investment Group Inc.)
Financing. (a) Each of Parent shall, and Merger Sub shall cause its Affiliates to, use reasonable best efforts to take, take (or cause to be taken, ) all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain arrange and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofof this Agreement on terms and conditions no less favorable in the aggregate than the terms and conditions described in the Spinco Commitment Letter. Parent shall, including using and shall cause its Affiliates to, (i) use reasonable best efforts to (i) maintain in effect and comply with and maintain the Debt Spinco Commitment Letter, (ii) Letter and negotiate and enter into execute definitive agreements with respect to the Debt Financing thereto, on the terms and subject only conditions contained therein, which terms and conditions shall not expand upon the conditions to Closing or other contingencies to the conditions (including funding on the “market flex” provisions) closing date of the Financing as set forth in the Debt Spinco Commitment Letter (or on other terms the “Financing Agreements”) and shall deliver to TDCC a copy thereof as consented to by the Company, promptly as practicable (and no later than one (1) Business Day after such consent not to be unreasonably withheld, delayed or conditionedexecution), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, ; (iiiii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Spinco Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, Financing Agreements that are within its control; (iviii) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) fully enforce its rights under the Debt Spinco Commitment Letter and the definitive agreements relating Financing Agreements including, at the request of TDCC, by commencing litigation proceedings against the Lenders; and (iv) use reasonable best efforts to draw upon and consummate the Financing at or prior to the Distribution. In the event any funds in the amounts set forth in the Spinco Commitment Letter or the Financing Agreements, or any portion thereof, become unavailable on the terms and conditions contemplated in the Spinco Commitment Letter or the Financing Agreements, or it becomes reasonably likely that such funds may become unavailable on the terms and conditions set forth therein, Parent shall, and shall cause its Affiliates to, use reasonable best efforts to arrange to obtain promptly any such portion from alternative sources, including, subject to Section 7.08(b), on terms that shall not expand the conditions or other contingencies to the funding, from those set forth in the Spinco Commitment Letter, in an amount sufficient, when added to the portion of the Financing that is available, to finance the New Debt and the Additional Debt (the “Alternative Financing”) and to obtain, and, when obtained, to provide promptly to TDCC a copy of, a new financing commitment that provides for financing in an amount that is sufficient, when added to the portion of the Financing that is available, to finance the New Debt and the Additional Debt (vi) otherwise comply with Parent’s the “Alternative Spinco Commitment Letter”). For the avoidance of doubt, if the Financing or the Alternative Financing, as applicable, is available and Merger Sub’s covenants and other obligations all conditions to Closing set forth in Article VIII have been satisfied or waived or will be satisfied or waived at the Closing, Parent shall take all actions necessary to allow Spinco to incur the indebtedness provided under the Debt Commitment Letter and Financing or the definitive agreements relating to the Debt Alternative Financing., as applicable. 66
Appears in 2 contracts
Samples: Merger Agreement (Dow Chemical Co /De/), Merger Agreement (Olin Corp)
Financing. (a) Each of Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, or replace, the Financing Commitments; except that that Parent and Sub may (x) modify the terms and conditions of the Debt Financing Commitment so long as such modifications would not reasonably be expected to adversely impact the ability of Parent or Sub to timely consummate the transactions contemplated by this Agreement or the likelihood of consummation of the transactions contemplated by this Agreement and (y) replace or amend the Debt Financing Commitment to add lenders, arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as of the date hereof, or otherwise so long as such replacement or amendment would not reasonably be expected to adversely impact or delay in any material respect the ability of Parent or Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby. Subject to the terms and conditions of this Agreement (including Section 6.09(b) and Section 6.10), each of Parent and Sub shall use its reasonable best efforts (taking into account the anticipated timing of the Marketing Period) to taketake all actions, or cause to be taken, all reasonable actions and to do, or cause to be done, do all reasonable things reasonably necessary, proper or advisable to arrange, arrange and obtain and consummate the proceeds of the Financing (including the Bridge Loans (as defined in the Debt Financing Commitment), if the funding of the Notes (as defined in the Debt Financing Commitment) as contemplated by the Debt Financing Commitment has not occurred substantially concurrently with or prior to the Merger Closing) on the terms and subject only to the conditions (including the “market flex” related flex provisions) set forth described in the Debt Commitment Letter as promptly as practicable after Financing Commitments and the date hereofFee Letter, including using its reasonable best efforts to (i) maintain in effect and comply the Financing Commitments in accordance with the terms and subject to the conditions thereof, subject to the foregoing replacement and amendment rights with respect to the Debt Commitment LetterFinancing Commitment, (ii) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent and Sub obtaining the Financing at the Merger Closing set forth therein that are within their control, (iii) 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” flex provisions) contemplated by the Debt Financing Commitment and the Fee Letter (and provide copies thereof to the Company promptly upon their execution and otherwise keep the Company reasonably informed on a reasonably current basis of the status of their efforts to arrange the Debt Financing) and (iv) upon satisfaction of the conditions set forth in such definitive agreements, consummate the Debt Commitment Letter Financing substantially concurrent with the Merger Closing. Subject to the terms and conditions of this Agreement (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditionedincluding Section 6.09(b) and Section 6.10), in each case, which shall not expand on the conditions to the funding event any portion of the Debt Financing at becomes unavailable on the Closing, reduce terms and conditions (including the aggregate amount of flex provisions) contained in the Debt Financing available Commitment and the Fee Letter (other than due to be funded at the Closing, impair the validity failure of the Debt Financing or prevent, impede or delay a condition to the consummation of the Debt Financing on resulting from a breach of any representation, warranty, or covenant of the Closing DateCompany set forth in this Agreement), Parent shall promptly notify the Company and shall use its reasonable best efforts to arrange to obtain alternative debt financing (iiiincluding from alternative sources) satisfy on a timely basis (or obtain no later than August 19, 2011 in an amount such that the waiver of) all conditions and covenants applicable aggregate funds that would be available to Parent and Sub at the Merger Closing under such alternative debt financing (when combined with the Equity Financing and cash on hand of the Company) will be sufficient to pay all amounts contemplated by this Agreement to be paid by them and to perform their respective obligations under this Agreement, provided that neither Parent nor Sub shall be required to arrange for or obtain any such alternative debt financing (unless Parent and Sub otherwise determine in their sole discretion) on terms and conditions (including flex provisions) that are less favorable to the interests of Parent and Sub than the terms contained in the Debt Financing Commitment Letter and the definitive Fee Letter. Parent shall give the Company prompt notice of any breach by any party to any of the Financing Commitments of which Parent or Sub becomes aware, or any termination of any of any of the Financing Commitments. Parent shall promptly deliver to the Company true and complete copies of all agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable pursuant to which any such financing source shall have committed to provide Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver with any portion of the conditions Financing. For purposes of this Section 6.09, Section 6.10 and Section 5.03, references to Parent’s “Financing” and Merger Sub’s obligations “Debt Financing” shall include the financing contemplated by the Financing Commitments as permitted by this Section 6.09 to consummate the Closingbe amended, consummate the modified or replaced and references to “Financing Commitments”, “Debt Financing at the ClosingCommitment” and “Fee Letter” shall include such documents as permitted by this Section 6.09(a) to be amended, (v) enforce its rights under the Debt Commitment Letter modified or replaced, in each case from and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingafter such amendment, modification or replacement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CD&R Associates VIII, Ltd.), Agreement and Plan of Merger (Emergency Medical Services CORP)
Financing. (a) Each of Parent and Merger Acquisition Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing, including using reasonable best efforts to to: (i) maintain in effect the Commitment Letter and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Definitive Financing Agreements on the terms and subject only conditions contained in the Commitment Letter and deliver to the Company a copy of any Definitive Financing Agreements to the extent executed prior to the Effective Time promptly after execution thereof; (ii) satisfy on a timely basis (or obtain waiver of) all conditions under the Commitment Letter and, if applicable, the Definitive Financing Agreements applicable to Parent and Acquisition Sub; and (including iii) as soon as reasonably practicable, consummate, or cause the “market flex” provisions) set forth consummation of, the Debt Financing, including, in the Debt event of a breach by the other parties thereto that impedes or delays or would reasonably be expected to impede or delay the Acceptance Time or the Effective Time, by making written demands and reasonable requests of such parties to cure such breach or otherwise provide reasonable assurances with respect to such party’s obligations thereunder. If all conditions to the lenders’ obligations under the Commitment Letter or Definitive Financing Agreements, as applicable, have been satisfied, Parent and Acquisition Sub shall use their reasonable best efforts to cause the lenders providing such Debt Financing to fund, at the Acceptance Time, the Financing required to satisfy all of Parent’s and Acquisition Sub’s obligations at the Acceptance Time (provided, however, that nothing herein shall require Parent or on Acquisition Sub to take any enforcement action, including through litigation, to cause such lenders to fund such Debt Financing). Parent and Acquisition Sub shall have the right from time to time to amend (including, by adding or replacing lenders, lead arrangers, bookrunners, syndication agents or similar entities), replace, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and/or substitute other terms as consented 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 by or waiver of any provision of the CompanyCommitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Debt Financing shall not, without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, ): (A) reduce the aggregate amount of the Debt Financing; (B) impose new or additional conditions precedent or contingencies to the Debt Financing available as set forth in the Commitment Letter (unless such conditions precedent or contingencies to the financing would not be: (1) materially adverse to Parent and Acquisition Sub or the Company; and (2) reasonably expected to prevent or impede or delay the Acceptance Time or the Effective Time); or (C) prevent or impede or delay the Acceptance Time or the Effective Time. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Debt Financing; provided, that Parent shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege or protection; provided, however, that Parent shall give notice to the Company of the fact that it is withholding such information or documents and thereafter Parent and the Company shall use their respective commercially reasonable efforts to cause such information to be funded at provided in a manner that would not reasonably be expected to waive the Closing, impair applicable privilege or protection. In the validity event any portion of the Debt Financing becomes unavailable or preventParent or Acquisition Sub becomes aware of any event or circumstance that would reasonably be expected to make any portion of the Debt Financing unavailable, impede in each case, on the terms and conditions contemplated in the Commitment Letter, Parent and Acquisition Sub shall promptly notify the Company and shall use their reasonable best efforts to arrange and obtain from the same and/or alternative financing sources alternative financing upon terms and conditions not materially less favorable, taken as a whole, to Parent, Acquisition Sub and, with respect to conditions or delay contingencies to such alternative financing, the consummation Company than those set forth in the Commitment Letter, in an amount sufficient, together with any available cash resources, to consummate the Merger, the Offer and the other Contemplated Transactions as promptly as practicable following the occurrence of such event. Parent and Acquisition Sub shall deliver to the Company true and complete copies of all agreements pursuant to any such source of alternative financing shall have committed to provide Parent and Acquisition Sub with any portion of the Debt Financing promptly after execution thereof. Parent and Acquisition Sub shall give the Company prompt notice: (x) of any breach or potential breach threatened in writing by any party to the Commitment Letter or of any condition which may not be satisfied, in each case, of which Parent or Acquisition Sub becomes aware or any termination of the Commitment Letter or the Definitive Financing Agreement that occurs prior to the funding thereunder; (y) the receipt of any written notice or other written communication from any other party thereto with respect to any breach, default, termination or repudiation by any party to any of the Commitment Letter or Definitive Financing Agreement related to the Financing of any provisions of the Commitment Letters or the Definitive Financing Agreement, if applicable, related to the Debt Financing that occurs prior to the funding thereunder; and (z) if at any time for any reason Parent or Acquisition Sub believes in good faith that it will not be able to obtain all or any portion of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain terms and conditions contemplated by the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretothe Definitive Financing Agreements, if applicable. As soon as reasonably practicable, following written request by the Company, Parent and Acquisition Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause “(iv) upon the satisfaction x),” “(y)” or waiver “(z)” of the conditions immediately preceding sentence; provided that they need not provide any information that is subject to Parent’s contractual confidentiality restrictions, privileged or that is requested for purposes of litigation; provided, however, that, Parent shall: (I) give reasonable notice to the Company of the fact that either it or Acquisition Sub is not providing such information pursuant to this Section 6.12(a); (II) inform the Company with sufficient detail of the reason for not providing such information; and Merger Sub’s obligations (III) with respect to consummate reasons relating to contractual confidentiality restrictions and privilege, use, and cause Acquisition Sub to use, commercially reasonable efforts to cause the Closing, consummate information that is subject to such restriction or privilege to be provided in a manner that would not reasonably be expected to violate such restriction or privilege. On the Debt Financing at the Closing, sixth business day (vcalculated as set forth in Rule 14d-1(g)(3) enforce its rights under the Debt Commitment Letter and the definitive agreements relating Exchange Act) immediately prior to the Debt Financing scheduled Expiration Date, Parent shall make a determination as to whether the Funding Condition is reasonably expected to be satisfied on the scheduled Expiration Date and, if Parent, acting reasonably and (vi) otherwise comply with Parent’s in good faith, determines that the Funding Condition is reasonably expected to be satisfied on the scheduled Expiration Date, Parent and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating Acquisition Sub shall waive such condition prior to the Debt Financing11:59 p.m., Eastern Time, on such sixth business day.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Riverbed Technology, Inc.), Agreement and Plan of Merger (Opnet Technologies Inc)
Financing. (a) Each of Parent and Merger Acquisition Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange and obtain the proceeds of the Equity Financing and consummate the Debt Financing on the terms and subject only to conditions described in the conditions (including the “market flex” provisions) set forth in Equity Commitment Letter or the Debt Commitment Letter Letter, as promptly applicable (as practicable after each may be amended in accordance with the date hereofterms below), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contained therein and (ii) to satisfy on a timely basis (taking into account the expected timing of the Closing) all conditions, and otherwise comply with all terms, applicable to Parent and Acquisition Sub in such definitive agreements within their control. Parent and Acquisition Sub may not agree to or permit any amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the Equity Commitment Letter without the consent of the Company. Parent and Acquisition Sub may not agree to or permit any amendment, supplement or other modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the definitive agreements relating to the Debt Financing on without the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the ClosingCompany if such amendments, supplement, other modification or waivers would or could reasonably be expected to (w) reduce the aggregate amount of the Debt Financing available below the amount required to be funded at repay or refinance the Closingdebt contemplated in this Agreement or the Debt Commitment Letter, impair (x) impose new or additional conditions to the validity receipt of the Debt Financing or preventamend or otherwise modify the existing conditions to the receipt of the Debt Financing so as to adversely impact the ability of Parent or Acquisition Sub to timely consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby, impede (y) prevent or materially delay the consummation of the Debt Financing on transactions contemplated by this Agreement or (z) adversely impact the Closing Date, (iii) satisfy on a timely basis (ability of Parent or obtain Acquisition Sub to enforce its rights against the waiver of) all conditions and covenants applicable other parties to Parent and Merger Sub in the Debt Commitment Letter and (provided, that, for the definitive agreements related thereto oravoidance of doubt, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Acquisition Sub contained in such Debt Commitment Letter may replace or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under amend the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingadd lenders, lead arrangers, bookrunners, syndication agents or similar entities).
Appears in 2 contracts
Samples: Agreement and Plan of Amalgamation, Agreement and Plan of Amalgamation (SeaCube Container Leasing Ltd.)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofLetter, including (i) using its reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive financing agreements with respect thereto on terms and conditions contemplated in the Commitment Letter provided to the Company pursuant to Section 4.8, (ii) fully paying any and all commitment fees or other fees required by the Commitment Letter when due pursuant to the provisions thereof, (iii) using its reasonable best efforts to satisfy all conditions applicable to Parent in the Commitment Letter and such definitive financing agreements, (iv) using its reasonable best efforts to comply with its obligations under the Commitment Letter and (v) enforcing its rights under the Commitment Letter. Parent shall keep the Company reasonably informed and in reasonable detail (including providing the Company with copies of all definitive documents related to the Financing in accordance with Section 4.8) with respect to all material developments concerning the Financing. Without limiting the generality of the foregoing, Parent shall give the Company prompt notice (x) of any material breach or default by any party to any of the Commitment Letter or definitive financing agreements related to the Financing of which Parent becomes aware, (y) of the receipt of any written notice from any Financing Party with respect to any (1) actual or potential material breach, default, termination or repudiation by any party to any of the Commitment Letter or definitive financing agreements related to the Financing of any provisions of the Commitment Letter or definitive financing agreements related to the Financing or (2) dispute or disagreement between or among any parties to any of the Commitment Letter or definitive financing agreements related to the Financing with respect to the Debt obligation to fund the Financing or the amount of the Financing to be funded at Closing, and (z) if at any time management of Parent believes it will not be able to obtain all or any portion of the Financing on the terms and subject only conditions, in the manner or from the sources contemplated by the Commitment Letter or definitive financing agreements related to the conditions Financing. As soon as reasonably practicable, Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (including x), (y) or (z) of the “market flex” provisions) set forth immediately preceding sentence; provided, that Parent need not provide any information believed to be privileged, that is requested for purposes of litigation or that is related to fees and other economic information redacted from such agreements that is consistent with the information redacted from the Fee Letters executed in connection with the Debt Commitment Letter (and consistent with Section 4.8. Parent shall have the right from time to time to amend, replace, supplement or on otherwise modify, or waive any of its rights under, the Commitment Letter, Fee Letters or definitive financing agreements, and/or substitute other terms as consented to by debt or equity financing for all or any portion of the CompanyFinancing from the same and/or alternative financing sources, provided that Parent shall not permit any such consent not amendment or modification to be unreasonably withheldmade to, delayed or conditioned)any waiver of any material provision or remedy under, the Commitment Letter or replace all or a portion of the Financing with alternate financing arrangements that, in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, would reduce the aggregate amount of the Debt Financing available (other than immaterial reductions or as otherwise proved in such Commitment Letter or Fee Letters, including “flex provisions”), amend the conditions to be funded at the Closing, impair the validity drawdown of the Debt Financing in a manner adverse to the interests of the Company, or preventwhich would otherwise in any other respect reasonably be expected to impair, impede delay or delay prevent the consummation of the Debt Financing on transactions contemplated by this Agreement without the Closing Dateprior written consent of the Company (which consent shall not be unreasonably withheld, (iii) satisfy on a timely basis (conditioned or obtain delayed). Parent shall promptly deliver to the waiver of) all conditions and covenants applicable Company copies of any such amendment, modification or replacement, provided that Parent shall not be obligated to Parent and Merger Sub deliver to the Company copies of any Fee Letters or other information redacted from such agreements that is consistent with the economic information redacted from the Fee Letters entered into in connection with the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply consistent with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingSection 4.8.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tempur Pedic International Inc), Agreement and Plan of Merger (Sealy Corp)
Financing. (a) Each Subject to the terms and conditions of Parent and Merger Sub this Agreement (including Section 4.13), Investor shall use its reasonable best efforts to take, or cause arrange for the Company to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the proceeds of the Debt Financing on the terms and subject only to the conditions (including the “market flex” flex provisions) set forth described in the Debt Commitment Financing Commitments and any related Fee Letter as promptly as practicable after the date hereofand Engagement Letter, including using its reasonable best efforts to (i) maintain in effect and comply the Debt Financing Commitments in accordance with the Debt Commitment Letterterms and subject to the conditions thereof, (ii) assist in the satisfaction on a timely basis of all conditions applicable to the Company (as assignee of Investor’s rights and obligations under the Debt Financing Commitments) in obtaining the Debt Financing at the Closing set forth therein (including consummating the Equity Financing on the terms set forth in the Equity Financing Commitment at or prior to Closing), and (iii) 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” flex provisions) contemplated by the Debt Financing Commitments and related Fee Letter (provided that Investor shall provide copies thereof to Seller on a current basis and consider in good faith any changes or comments thereto reasonably proposed by Seller and otherwise keep Seller reasonably informed on a current basis of the status of its efforts to arrange the Debt Financing and afford Seller and the Company the opportunity to attend and participate in any scheduled meetings or negotiations relating to the Debt Financing). Investor shall not, and shall not agree with Guarantor to, enter into any amendment, supplement or other modification of, or waive any of its rights under, the Equity Financing Commitment. Investor may (i) amend, replace or modify the Debt Financing Commitments and any related Fee Letter and Engagement Letter to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities or (ii) otherwise amend, replace or modify, or consent to any waiver of any provision or remedy under, the Debt Financing Commitments, other than any amendment, replacement, modification, consent or waiver set forth in Schedule 4.12, each of which shall require the prior written consent of Seller, which, upon request, shall be promptly given or denied. For the avoidance of doubt, nothing contained herein shall prevent Investor from reallocating the Debt Financing among the ABL Facility (as defined in the Debt Financing Commitment) and the Secured Interim Facility (as defined in the Debt Financing Commitment), in each case in accordance with the terms of the Debt Financing Commitment, or reducing the total amount of funds available under the Debt Financing, provided that in either case the representations and warranties set forth in the Debt Commitment Letter (or on other terms as consented to last sentence of Section 3.6 remain true and correct. Investor shall obtain the Equity Financing contemplated by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Equity Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s closing in Section 6.2 (other than those conditions that by their nature will not be satisfied until the Closing and Merger Sub’s obligations subject to consummate and in accordance with the Closingterms of the Equity Financing Commitment). Subject to the terms and conditions of this Agreement (including Section 4.13), consummate in the event any portion of the Debt Financing at becomes unavailable on the Closing, (v) enforce its rights under the Debt Commitment Letter terms and the definitive agreements relating to conditions contemplated in the Debt Financing Commitments, Investor shall promptly notify Seller and shall use its reasonable best efforts to arrange for alternative financing from alternative sources (1) in an amount such that the aggregate funds that would be available to the Company at the Closing will be sufficient to pay all amounts contemplated by Section 1.3(b) of this Agreement to be paid by it and to perform its obligations hereunder, (2) with conditions to closing and funding of which are not, when taken as a whole, more onerous than those in the Debt Financing Commitments, and (vi3) otherwise comply which shall not (absent the prior written consent of Seller) include terms that would require Seller’s consent pursuant to Schedule 4.12. Investor shall promptly (and on a current basis) deliver to Seller true and complete copies of all drafts of any alternative financing commitments (and consider in good faith any changes or comments thereto reasonably proposed by Seller) and all final agreements pursuant to which any such alternative source shall have committed to provide Investor with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to any portion of the Debt Financing. For purposes of this Section 4.12, Section 3.6 and Section 4.13, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted by this Section 4.12 to be amended, modified or replaced and references to “Debt Financing Commitments”, “Fee Letter” and “Engagement Letter” shall include such documents as permitted by this Section 4.12 to be amended, modified or replaced, in each case from and after such amendment, modification or replacement.
Appears in 2 contracts
Samples: Investment Agreement (Unistrut International Holdings, LLC), Investment Agreement (Tyco International LTD)
Financing. (a) Each of Parent Buyer shall, and Merger Sub shall cause its Affiliates to, use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after or any Permanent Financing in an aggregate amount (together with other available cash on hand or available and committed financing of Buyer (which shall have no additional or more onerous conditions than the date hereofFinancing)) sufficient to pay the Estimated Purchase Price, including using reasonable best efforts to (i) maintain in effect the Commitment Letter or, upon the execution and delivery thereof, the definitive agreements related to the Financing or the Permanent Financing (the “Financing Agreements”), as applicable, and comply with the Debt Commitment LetterBuyer’s obligations thereunder, (ii) satisfy on a timely basis (and, in any event, as of the Closing) all conditions within Buyer’s control and applicable to Buyer to obtaining the Financing or the Permanent Financing, as applicable, at the Closing as set forth therein, (iii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” flex provisions) set forth in the Debt Commitment Letter (subject to any modifications or on other terms as consented to amendments thereto or substitution and replacement thereof permitted by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions this Agreement and acceptable to the funding of the Debt applicable Financing at Sources) so that such definitive documents are in effect on or prior to the Closing, and (iv) consummate the Financing in accordance with the terms and conditions of the Commitment Letter or any Permanent Financing in accordance with the applicable Financing Agreements at or prior to the Closing (subject to any modifications or amendments thereto or substitution and replacement thereof permitted by this Agreement and acceptable to the applicable Financing Sources). Buyer shall have the right from time to time to amend, supplement or otherwise modify, or waive any of its rights under, the Commitment Letter and the definitive documentation for the Financing, including to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Commitment Letter as of the date of this Agreement, amend titles, allocations and the fee arrangements with respect to the existing and additional lenders, arrangers, bookrunners, agents, managers or similar entities and implement or exercise any flex provisions set forth in the Commitment Letter on the date hereof, or replace and substitute other financing for all or any portion of the Financing from the same or alternative financing sources (any such replacement or substitute financing, the “Permanent Financing”), and in connection therewith terminate the Commitment Letter and/or any definitive documentation for the Financing; provided that no such amendment, supplement, modification, waiver, substitution or replacement shall, without the prior written consent of Sellers: (x) reduce the aggregate amount of the Debt Financing or the net cash proceeds available from the Financing (including, in each case, by changing the amount of fees or other amounts to be funded at paid (including original issue discount) with respect to the ClosingFinancing) to an amount less than necessary to satisfy the Funding Obligations (when taken together with the net cash proceeds available from any Permanent Financing), impair (y) impose new or additional conditions or contingencies to the validity Financing or otherwise expand, amend or modify any of the Debt conditions to the Financing in a manner that would reasonably be expected to (A) materially delay or preventprevent the Closing Date (for the avoidance of doubt, impede any such delay shall not extend past the termination of this Agreement or delay otherwise relieve Buyer of any of its obligations hereunder as a result of not Closing) or (B) materially delay, prevent or otherwise make less likely to occur the consummation funding of the Debt Financing on (or satisfaction of the conditions to obtaining the Financing) (provided that no such delay referred to in this clause (y) shall extend the Closing DateDate beyond the date upon which the Closing would otherwise have occurred but for such delay) or (z) adversely impact the ability of Buyer to enforce its rights against the other parties to the Commitment Letter (provided, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to that Parent and Merger Sub in may amend the Debt Commitment Letter and the definitive agreements related thereto orto add lenders, if necessary lead arrangers, bookrunners, syndication agents or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under similar entities who have not executed the Debt Commitment Letter and as of the definitive agreements relating date hereof or in connection with an escrow arrangement to include conditions customary for escrow arrangements of this nature acceptable to the Debt applicable Financing and Sources). Buyer shall promptly deliver to Sellers copies of any amendment, modification or waiver to the Commitment Letter (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under provided, that the Fee Letters may be redacted as set forth in Section 3.4). References herein to “Debt Commitment Letter”, “Fee Letters”, and “Commitment Letter” shall include and mean such documents as amended, modified, replaced or waived in compliance with this Section 4.20(a), and references to “Financing” shall include and mean the financing contemplated by the Commitment Letter and as amended, modified, replaced or waived in compliance with this Section 4.20(a), as applicable. In the definitive agreements relating event that any financing is consummated prior to Closing, Buyer shall keep the net proceeds of such financing available in all respects (which may include escrow arrangements with conditions customary for escrow arrangements of this nature acceptable to the Debt Financingapplicable Financing Sources) to fund Buyer’s obligations herein and there shall not be any conditions or other restrictions on the use or release of such net proceeds that are more onerous to Buyer than those conditions and terms contained in the Commitment Letter as of the date hereof.
Appears in 2 contracts
Samples: Securities and Asset Purchase Agreement (Triumph Group Inc), Securities and Asset Purchase Agreement (Aar Corp)
Financing. (a) Each of (i) Parent and Merger Sub shall will use their respective reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things reasonably necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only to conditions described in the conditions Financing Commitments (including the any applicable “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof), including using and use reasonable best efforts to (iA) maintain in effect and comply with the Debt Commitment LetterFinancing Commitments until the Merger is consummated, (iiB) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the any applicable “market flex” provisions) set forth in contemplated by the Debt Commitment Letter Financing Commitments (or on other terms as consented that are acceptable to by the Company, such consent Parent and could not reasonably be expected to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, (1) reduce the aggregate amount of net cash proceeds available from the Debt Financing available Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to be funded at the Closingprevent, impede, delay or impair the validity availability of the Debt Financing or prevent, impede the ability of Parent or delay Merger Sub to consummate the consummation Merger as of the Debt Closing or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing on the Closing DateCommitments, (iiiC) satisfy on a timely basis (or obtain prior to the waiver of) Closing all conditions and covenants precedent applicable to Parent and Merger Sub in the Debt Commitment Letter and Financing Commitments, (D) consummate the definitive agreements related thereto orFinancing at or prior to the Closing, if necessary or deemed advisable by Parent, seek (E) enforce the waiver rights of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing Commitments and (viF) otherwise comply in all material respects with Parent’s and Merger Sub’s its covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating Financing Commitments. Notwithstanding anything contained herein to the Debt contrary, neither Parent nor Merger Sub will permit any amendment, supplement or other modification of, or waiver of any provision or remedy under, the Financing Commitments to the extent such amendment, supplement, other modification or waiver could reasonably be expected to (1) reduce the aggregate amount of net cash proceeds available from the Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to prevent, impede, delay or impair the availability of the Financing or the ability of Parent or Merger Sub to consummate the Merger as of the Closing, or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Commitments. Parent and Merger Sub will deliver to the Company copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (American Greetings Corp), Agreement and Plan of Merger (American Greetings Corp)
Financing. (a) Each of Parent and Merger Sub The Purchaser shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain arrange and consummate the Debt Financing as soon as reasonably practicable after the date of this Agreement on the terms and subject only conditions described in the Financing Commitments (provided, that the Purchaser may (x) amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement, or (y) otherwise replace or amend the Debt Financing Commitments so long as such action would not reasonably be expected to delay or prevent the Closing and the terms are not materially less beneficial to the Purchaser, with respect to conditionality, than those in the Debt Financing Commitments as in effect on the date of this Agreement), which actions shall include using best efforts (i) to maintain the Financing Commitments and negotiating and executing definitive agreements with respect thereto on terms and conditions (including contained therein, which terms and conditions shall not in any material respect expand upon the “market flex” provisions) conditions to Closing or other contingencies to the funding on the Closing Date of the Financing as set forth in the Debt Commitment Letter Financing Commitments (the “Financing Agreements”) and delivering to the Seller a copy thereof as promptly as practicable (and no later than one Business Day) after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, such execution; (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter Financing Commitments and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, Financing Agreements that are within its control; (iviii) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) fully enforce its rights under the Debt Commitment Letter Financing Commitments and the definitive agreements relating Financing Agreements; and (iv) consummate the Financing at or prior to the Closing. In the event any portion of the Financing becomes unavailable on the terms and conditions contemplated in the Financing Commitments or the Financing Agreements, the Purchaser shall (subject to the terms of the Investor Financing Commitments) use all commercially reasonable efforts to arrange to obtain promptly any such portion from alternative sources, including, subject to Section 5.10(b), on terms and conditions (including economic terms, termination rights, flex provisions and funding conditions) substantially similar to those included in the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under Commitments as in effect on the Debt Commitment Letter date of this Agreement, in an amount sufficient, when added to the portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and the definitive agreements relating other Transaction Documents (the “Alternative Financing”) and to obtain, and, when obtained, to promptly provide the Seller with a copy of, a new financing commitment that provides for financing in an amount that is sufficient, when added to the Debt portion of the Financing that is available, to consummate the transactions contemplated by this Agreement and the other Transaction Documents (the “Alternative Financing Commitment”). If the Financing or the Alternative Financing is available to be drawn down by the Purchaser, in an aggregate amount sufficient to consummate the transactions contemplated by this Agreement and the other Transaction Documents, and the conditions to the closing set forth in Section 8.02 have been satisfied (other than conditions that by their nature are to be satisfied at the Closing), the Purchaser shall draw on such Financing or Alternative Financing, shall consummate the Closing and pay the Purchase Price to the Seller.
Appears in 2 contracts
Samples: Sale and Purchase Agreement, Sale and Purchase Agreement (Trinseo S.A.)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Letters, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Letters, (ii) negotiate and enter into definitive agreements (which, with respect to the bridge facility documentation, shall not be required until determined by Parent to be reasonably likely to be necessary in connection with the funding of the Debt Financing) with respect to the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented that, with respect to by conditionality, are not less favorable to Parent or Merger Sub than the Company, such consent not to be unreasonably withheld, delayed or conditioned), terms and conditions (including market “flex” provisions) set forth in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateCommitment Letter), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter Financing Letters and the definitive agreements related thereto (including by consummating the Equity Financing at or prior to the Closing on the terms and subject to the conditions set forth in the Equity Funding Letter) (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the ClosingOffer and the Merger, consummate the Debt Financing and cause the lenders and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter Financing Letters and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter Financing Letters and the definitive agreements relating to the Financing. Parent, Merger Sub and the Guarantors 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 Letters or the definitive agreements relating to the Financing if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Financing Letters on the date of this Agreement unless the Debt Financing or Equity Financing is increased by a corresponding amount) such that the aggregate amount of the Financing would be below the amount required to pay the Required Amount, (B) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that would reasonably be expected to materially delay or prevent the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (C) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Financing Letters or the definitive agreements with respect to the Financing. Parent shall promptly deliver to the Company copies of any amendment, modification, supplement, consent or waiver to or under any Financing Letter or the definitive agreements relating to the Financing promptly upon execution thereof. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 5.04 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (i) seek the Equity Financing from any source other than the counterparties to, or in any amount in excess of that contemplated by, the Equity Funding Letter, or (ii) pay any material fees in excess of those contemplated by the Equity Funding Letter or the Debt Commitment Letter (including any market “flex” provisions contained therein).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fresh Market, Inc.), Agreement and Plan of Merger (Fresh Market, Inc.)
Financing. (a) Each Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and conditions described in the Financing Documents, including (i) maintaining in effect the Financing Documents until the Transactions are consummated in accordance with their respective terms, (ii) satisfying, or causing to be satisfied, on a timely basis all conditions to the closing of and funding under the Financing Documents 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, and (iii) consummating the Financing at or prior to the Effective Time in accordance with the terms of the Financing Documents; provided that Parent and/or 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), than the terms and conditions (including the “market flex” provisions) as set forth in the Debt Commitment Letter Financing Documents as in effect on the date hereof (the “Alternative Financing”), in each case only so long as (A) the aggregate proceeds of the 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 Available Cash Amount, will be sufficient for Parent and the Surviving Company to pay (x) the Merger Consideration, and (y) any other amounts required to be paid in connection with the consummation of the Transactions upon the terms and conditions contemplated hereby and (B) such amendment or modification or the Alternative Financing would not prevent, materially delay or materially impede or impair the ability of Parent and Merger Sub to consummate the Transactions. Parent shall deliver to the Company true and complete copies of all Contracts or other arrangements pursuant to which any 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 date hereof, including using reasonable best efforts to (i) maintain in effect and comply with event any portion of the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing becomes unavailable on the terms and subject only conditions contemplated in the Financing Documents and to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to extent is not replaced by the Alternative Financing, Parent shall promptly notify the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Yao Jinbo), Agreement and Plan of Merger (58.com Inc.)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only conditions described in or contemplated by the Debt Financing Commitment and shall not agree to any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Financing Commitment without the prior written consent of the Company if such amendments, modifications or waivers would or would reasonably be expected to (w) reduce the aggregate amount of the Debt Financing below the amount required to consummate the Merger and the other transactions contemplated hereby, (x) impose new or additional conditions to the conditions (including the “market flex” provisions) set forth in receipt of the Debt Financing, (y) prevent or materially delay the consummation of the transactions contemplated by this Agreement or (z) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Commitments (provided that Parent and Merger Sub may amend the Debt Financing Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitment as promptly as practicable after of the date hereofof this Agreement so long as such action would not reasonably be expected to delay or prevent the Closing), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Commitment, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Financing Commitment Letter (including by consummating the financing pursuant to the terms of the Equity Financing Commitment) and the otherwise comply with its obligations thereunder, (iii) enter into definitive agreements related with respect thereto oron the terms and conditions contemplated by the Debt Financing Commitment (or terms and conditions no less favorable, if necessary or deemed advisable by Parentin the aggregate, seek the waiver of conditions applicable to Parent and Merger Sub contained (in such the reasonable judgment of Parent) than the terms and conditions in the Debt Commitment Letter or such definitive agreements related theretoFinancing Commitment), (iv) upon in the satisfaction event that all conditions in the Debt Financing Commitment (other than the availability or waiver funding of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closingany Equity Financing) have been satisfied, consummate the Debt Financing at the Closing, or prior to Closing and (v) subject to compliance with the requirements of Section 10.09(b), enforce its rights under the Debt Financing Commitment Letter in the event that all conditions in the Debt Financing Commitment (other than the availability or funding of any Equity Financing) have been satisfied, to cause the lenders and other persons providing Debt Financing to fund on the Closing Date the Debt Financing required to consummate the Merger and the definitive agreements relating other transactions contemplated hereby. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice (containing a reasonable description of the circumstances giving rise to the notified matter): (A) of any material breach or material 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 material default) by any party to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under Commitment or definitive document related to the Debt Financing of which Parent or Merger Sub become aware; (B) of the receipt of any written notice or other written communication from any party to the Debt Financing Commitment Letter and with respect to any breach, default, termination or repudiation by any party to the Debt Financing Commitment or any definitive agreements relating document related to the Debt Financing or any provisions of the Debt Financing Commitment or any definitive document related to the Debt Financing; and (C) if Parent or Merger Sub 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 Debt Financing Commitment or the definitive documents related to the Debt Financing; provided, that the Parent and Merger Sub shall be under no obligation to disclose any information that is subject to attorney client or similar privilege, but only if such privilege is asserted in good faith. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall, if requested by the Company, use its reasonable best efforts to arrange and obtain alternative debt financing from alternative debt sources in an amount sufficient to consummate the transactions contemplated by this Agreement upon terms and conditions not less favorable, taken as a whole, to Parent and Merger Sub (in the reasonable judgment of Parent) than those in the Debt Financing Commitment as promptly as practicable following the occurrence of such event but no later than the Business Day immediately prior to the Closing Date. To the extent Parent, at the Company’s request, seeks to arrange and obtain alternative debt financing from alternative debt sources and such actions by Parent are determined to have constituted a breach of the Debt Financing Commitment, the Company agrees that such result shall not be deemed to be a breach by Parent of its obligations under this Section 7.18 or otherwise under this Agreement. Notwithstanding anything contained in this Section 7.18 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required (x) to amend or waive any of the terms or conditions hereof or (y) consummate the Closing any earlier than the final day of the Marketing Period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Pre Paid Legal Services Inc), Agreement and Plan of Merger (Pre Paid Legal Services Inc)
Financing. (a) Each of Parent Parent, Merger Sub and Merger Sub LLC shall use reasonable best efforts to take, or cause to be taken, all reasonable such actions and as may be necessary to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Financing on substantially the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, including (iii) to negotiate and enter into the definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter (or on other terms including, as consented to necessary, any “flex” provisions contained in the Fee Letter) by the Company, such consent not Closing Date and (ii) to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) , on a timely basis, all conditions to obtaining the Debt Financing in accordance with the terms thereof and covenants to comply with all of the obligations applicable to Parent and Merger Sub in pursuant to the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by thereto. Parent, seek Merger Sub and Merger LLC shall use reasonable best efforts to cause the waiver Lenders and other Persons to fund the Debt Financing required to consummate the Merger on the Closing Date. In the event that all conditions to funding the commitments contained in the Debt Commitment Letter have been satisfied, Parent, Merger Sub and Merger LLC shall use reasonable best efforts to cause the Lenders and other Persons to fund the Debt Financing required to consummate the Transactions contemplated by this Agreement, pay related fees and expenses (including paying all commitment fees when due, for repaying or refinancing the Credit Agreement or other indebtedness of conditions the Company) and satisfy all requirements applicable to Parent Parent, Merger Sub or Merger LLC related to or arising out of the consummation of the transactions contemplated hereby on the date of Closing. Parent, Merger Sub and Merger LLC shall give the Company prompt notice of any breach (or threatened breach) or default (or threatened default) by any party to the Debt Commitment Letter or the definitive agreements related thereto of which any of Parent, Merger Sub contained in such or Merger LLC has become aware or any termination of the Debt Commitment Letter or such definitive agreements related theretoagreements. In the event that any portion of the Debt Financing becomes unavailable, Parent, Merger Sub and Merger LLC shall use reasonable best efforts to arrange to obtain substitute financing as promptly as practicable in equivalent amounts commitments in respect of other financing for such portion of the Debt Financing from the same or alternative bona fide third-party financing sources on terms no less favorable to Parent, Merger Sub and Merger LLC as those contained in the Debt Commitment Letter, including with respect to the conditions precedent to funding of such financing that are in the aggregate, in respect of certainty of funding, are equivalent to (ivor more favorable to Parent, Merger Sub and Merger LLC than) upon the conditions precedent set forth in the Debt Commitment Letter, to replace the Debt Financing contemplated by such expired, replaced, terminated or unavailable commitments or agreements, and on terms that do not make the timely funding of the financing or the satisfaction or waiver of the conditions to obtaining the financing less likely to occur (“Alternative Financing”) and promptly notify the Company of the foregoing. If obtained, Parent’s , Merger Sub and Merger Sub’s obligations LLC shall deliver to consummate the ClosingCompany true and complete copies of all commitment letters, consummate agreements (including copies of fee letters (provided that fees, “market flex” and other economic terms which do not affect the Debt Financing at the Closingamount, (vavailability or conditionality of any portion thereof may be redacted)) enforce its rights under the Debt Commitment Letter pursuant to which any such alternative source shall have committed to provide Parent, Merger Sub and Merger LLC with Alternative Financing, including the definitive agreements relating related thereto. Parent, Merger Sub and Merger LLC shall (i) keep the Company reasonably informed of to the status of their efforts to arrange the Debt Financing and (viii) otherwise comply provide the Company with Parent’s and Merger Sub’s covenants and other obligations under final copies of the Debt Commitment Letter, the Fee Letter (provided that fees, “market flex” and other economic terms which do not affect the amount, availability or conditionality of any portion thereof may be redacted), and the definitive agreements relating related thereto or any debt commitment letter, fee letter and definitive agreements in connection with any Alternative Financing, if any, and (iii) provide the Company a reasonable opportunity to review all drafts of the Debt FinancingCommitment Letter, any debt commitment letter in connection with any Alternative Financing and, in each case, the definitive agreements related thereto and to approve the final versions of each of the foregoing.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (CBOE Holdings, Inc.), Agreement and Plan of Merger (Bats Global Markets, Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its commercially reasonable efforts to obtain the Financing on the terms and conditions described in the Financing Letters and shall not permit any amendment, modification or replacement of the Financing Letters, if such amendment, modification or replacement (x) reduces the aggregate amount of the Financing or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Financing in a manner that would reasonably be expected to (i) delay or prevent the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date or (ii) adversely impact the ability of Parent, Merger Sub or the Company, as applicable to enforce its rights against other parties to the Financing Letters or the definitive documents with respect thereto in each of clauses (i) and (ii) in any material respect. Parent shall deliver to the Company copies of any such amendment, modification or replacement. For purposes of this Section 5.5, references to “Financing” shall include the financing contemplated by the Financing Letters as permitted to be amended, modified or replaced by this Section 5.5(a) and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or replaced by this Section 5.5(a). Each of Parent and Merger Sub shall use its commercially reasonable best efforts (i) to take, or cause negotiate definitive agreements with respect to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing Commitment Letter on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only satisfy all conditions to the conditions (including the “market flex” provisions) set forth funding in the Debt Commitment Letter (or on other terms as consented applicable to by it that are within its control and consummate the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at or prior to the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, and (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter Letter. Parent shall keep the Company reasonably informed of the status of its efforts to arrange the Financing and provide to the Company copies of the material definitive agreements relating to documents for the Financing. If any portion of the Debt Financing becomes unavailable on the terms and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under conditions contemplated by the Debt Commitment Letter Letter, (A) Parent and Merger Sub shall promptly notify the Company and (B) Parent and Merger Sub shall use their commercially reasonable efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions no less favorable, taken as a whole, to Parent and Merger Sub (or their affiliates) than the terms and conditions set forth in the Financing Letters as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to Closing. Notwithstanding anything contained in this Section 5.5 or in any other provision of this Agreement, in no event shall Parent or Merger Sub be required (1) to amend or waive any of the terms or conditions hereof or (2) to consummate the Closing any earlier than the final day of the Marketing Period. Notwithstanding anything contained in this Section 5.5 or in any other provision of this Agreement, Parent and Merger Sub shall give the Company prompt written notice: (i) of any material breach or default by any party to any Financing Letters or definitive agreements relating document related to the Debt FinancingFinancing of any provisions of the Financing Letters; (ii) of the receipt of any written notice or other written communication from any financing source with respect to any: (A) material breach, default, termination or repudiation by any party to any Financing Letters of any provisions of the Financing Letters or (B) material dispute or disagreement between or among any parties to any Financing Letters; and (iii) if for any reason Parent or Merger Sub believes in good faith that it is reasonably likely that it will not be able to obtain all or any material portion of the Financing in the amounts or from the sources contemplated by the Financing Letters and that it is not reasonably likely that it will be able to obtain acceptable alternative financing prior to the final day of the Marketing Period; provided, that Parent and Merger Sub shall be under no obligation to disclose any information that is subject to an attorney-client or similar privilege.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cke Restaurants Inc), Agreement and Plan of Merger (Cke Restaurants Inc)
Financing. (a) Each of Parent and Merger Sub MergerSub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions arrange and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter Letters as promptly as practicable after the date hereof, including using (but subject in all respects to Section 11.13) their reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterLetters, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter Letters (including the flex provisions) or on other terms no less favorable to Parent and MergerSub as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Dateconditionality, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained MergerSub in such the Debt Commitment Letter or such definitive agreements related theretoLetters that are within their control (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at or prior to the Closing, Closing and (v) enforce its their rights under the Equity Commitment Letter to the extent set forth in Section 11.13 (but not the Debt Commitment Letter Letters as more fully described in Section 11.13); it being understood that Parent and MergerSub may seek to obtain financing in a private placement of securities pursuant to Rule 144A promulgated under the definitive agreements relating Securities Act in lieu of a portion of the Debt Financing (and references to the Debt Financing in this Section 8.03 shall be deemed to include such private placement); provided, however, that (1) Parent and MergerSub shall not release or waive the Debt Commitment Letters or the obligations of the arrangers and lenders thereunder and (vi2) otherwise comply Parent and MergerSub shall proceed with, and consummate, the financing contemplated in the Debt Financing Letters in the event that such alternative private placement financing is not available. Parent shall keep the Company reasonably informed with respect to all material activity concerning the status of the Debt Financing contemplated by the Debt Commitment Letters and shall give the Company notice of any material adverse change with respect to such Financing as promptly as practicable. Without limiting the generality of the foregoing, Parent and MergerSub shall give the Company prompt notice (x) of any material breach or material default by any party to any of the Debt Commitment Letters, or any definitive agreements related to the Debt Financing, in each case of which Parent or MergerSub becomes aware, (y) of the receipt of any written notice or other written communication, in each case received from any Debt Financing source with respect to any (3) material breach of Parent’s and Merger Subor MergerSub’s covenants and other obligations under the Debt Commitment Letter and the Letters or definitive agreements relating related to the Debt Financing., or default, termination or repudiation by any party to any of the Debt Commitment Letters or definitive agreements related to the Debt Financing or (4) material dispute between or among any parties to any of the Debt Commitment Letters or definitive agreements related to the Debt Financing or any provisions of any of the Debt Commitment Letters, in each case, with respect to the obligation to fund the Debt Financing or the amount of the Debt Financing to be funded at Closing and (z) of the receipt of any notice or other communication (written or verbal) on the basis of which Parent expects that a party to the Debt Financing will fail to fund the Debt Financing or is reducing the amount of the Debt Financing; provided that in no event shall Parent or MergerSub be under any obligation to disclose any information pursuant to clauses (1) or (2) that would waive the protection of attorney-client or similar privilege if such party shall have used reasonable best efforts to disclose such information in a way that would not waive such privilege. As soon as reasonably practicable, but in any event within five Business Days of the date the Company delivers to Parent or MergerSub a written request, Parent and MergerSub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (x), (y) or (z) of the immediately preceding sentence. In the event that any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letters (including the flex provisions), (A) Parent shall promptly notify the Company and (B) Parent and MergerSub shall use their reasonable best efforts to arrange and obtain any such portion from alternative sources, on terms, taken as whole, that are no more adverse to Parent and the Company (including after giving effect to the market flex provisions), as promptly as practicable following the occurrence of such event but in no event later than the last day of the Marketing Period. In furtherance of the provisions of this Section 8.03, one or more Debt Commitment Letters may be amended, restated, supplemented or otherwise modified or superseded at the option of Parent after the date of this Agreement but prior to the
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Rennes Fondation), Agreement and Plan of Merger (Ebix Inc)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause Merger Sub to be takentake, all reasonable actions and to do, or cause Merger Sub to be donedo, all reasonable things reasonably necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly soon as practicable after the date hereof, the Financing on the terms and conditions described in the Financing Commitments (provided that, subject to the provisions of this Section 6.14(a), Parent and Merger Sub may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitments as of the date hereof, or otherwise amend the Financing Commitments so long as such replacement or amendment would not adversely impact in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect the Financing Commitments, subject to the foregoing replacement and comply with the Debt Commitment Letteramendment rights, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained to obtaining the Financing set forth in such the Financing Commitments that are within their control (including by consummating the Equity Financing pursuant to the terms of the Equity Financing Commitments and by assisting in the syndication or marketing of the Debt Commitment Letter or such Financing contemplated by the Debt Financing Commitments) and (iii) enter into definitive agreements related thereto, (iv) upon with respect thereto on the satisfaction terms and conditions contemplated by the Financing Commitments or waiver on other terms acceptable to the Parent that would not adversely impact in any material respect the ability of the conditions to Parent’s and Parent or Merger Sub’s obligations Sub to consummate the Closingtransactions contemplated hereby. Subject to the terms and conditions contained herein, consummate at the Closing Parent shall draw down on the Debt Financing at if the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating conditions to the Debt Financing Commitments are then satisfied. If any portion of the Financing becomes unavailable on the terms and (vi) otherwise comply with Parent’s conditions contemplated in the Financing Commitments, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and Merger Sub’s covenants and other obligations under Sub (as determined in the Debt Commitment Letter and reasonable judgment of Parent) in an amount sufficient to consummate the definitive agreements relating transactions contemplated by this Agreement. Parent shall keep the Company reasonably apprised of material developments related to the Debt Financing, and shall provide a copy of each document related to the Financing to the Company promptly after such document becomes available.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Topps Co Inc)
Financing. (a) Each of Parent and Merger Acquisition Sub shall shall, subject to the terms and conditions of this Agreement, use its commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the proceeds of the Debt Financing at Closing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofand Fee Letter, including using commercially reasonable best efforts to (i) maintain in effect the Commitment Letter and comply Fee Letter, in each case as in effect on the date of this Agreement (subject to the last sentence of this Section 6.10(a)), in accordance with the Debt Commitment Lettertheir terms, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) consistent with the terms and subject only to the conditions contained therein (including including, as necessary, the “market flex” provisions) set forth provisions contained in the Debt Commitment Letter Fee Letter) (or if available, on other terms as consented that are acceptable to by Parent and would not (x) adversely affect the Companyability of Parent and Acquisition Sub to consummate the transactions contemplated hereby, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, (y) reduce the aggregate amount of the Debt Financing available below the amount required to be funded at consummate the Closing, impair Merger and the validity of the Debt Financing other transactions contemplated by this Agreement and to pay fees and expenses and (z) add any new (or prevent, impede or delay adversely modify any existing) condition to the consummation of the Debt Financing on as compared to those in the Closing DateCommitment Letter and Fee Letter as in effect of the date of this Agreement in a manner that would reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement and (iii) satisfy on a timely basis (or or, if deemed advisable by Parent, obtain the waiver of) on a timely basis all conditions and covenants applicable to Parent and Merger Sub in the Commitment Letter, Fee Letter and the Definitive Agreements and otherwise comply with all of its obligations thereunder. In the event that all conditions contained in the Commitment Letter have been satisfied or waived and Parent is required to consummate the Closing pursuant to Section 2.2, Parent shall use commercially reasonable efforts to cause each Lender to fund its respective committed portion of the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date; provided, however that nothing contained in this Section 6.10 shall require either Parent or Acquisition Sub to bring any enforcement action or proceeding against any Debt Financing Source to enforce its respective rights under the commitment to procure Debt Financing pursuant to the applicable Commitment Letter and Fee Letter. Neither Parent nor Acquisition Sub shall, without the definitive agreements related thereto orprior written consent of the Company, if necessary permit any amendment or deemed advisable by Parentmodification to, seek the or any waiver of conditions applicable to Parent and Merger Sub contained in such any provision (including any remedy) under, or replace (it being understood that any Alternative Debt Financing shall not be deemed a replacement for purposes of this sentence), the Commitment Letter or Fee Letter if such definitive agreements related theretoamendment, modification, or waiver or replacement (w) adds new (or adversely modifies any existing) conditions to the consummation of the Debt Financing as compared to those in the Commitment Letter and Fee Letter as in effect on the date of this Agreement in a manner that would reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement, (ivx) upon adversely affects the satisfaction ability of Parent or waiver Acquisition Sub to enforce their rights against other parties to the Commitment Letter, Fee Letter or the Definitive Agreements as so amended, replaced, supplemented or otherwise modified, relative to the ability of Parent to enforce its rights against such other parties to the Commitment Letter and Fee Letter as in effect on the date hereof or in the Definitive Agreements, (y) reduces the aggregate amount of the conditions to Parent’s and Merger Sub’s obligations Debt Financing below the amount required to consummate the ClosingMerger and the other transactions contemplated by this Agreement and to pay related fees and expenses, consummate or (z) would otherwise reasonably be expected to prevent, impede or materially delay the Debt Financing at consummation of the ClosingMerger and the other transactions contemplated by this Agreement; provided that for the avoidance of doubt no consent from the Company shall be required for: (A) any amendment, replacement, supplement or modification of the Commitment Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter as of the date of this Agreement (including in replacement of a Lender), (vB) enforce its rights under implementation or exercise of any “flex” provisions provided in the Debt Fee Letter as in effect as of the date hereof, or (C) any amendment, replacement, supplement or modification to the Commitment Letter and or Definitive Agreements so long as such action would not be prohibited by the definitive agreements relating to the Debt Financing and foregoing clauses (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingw)-(z).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Elizabeth Arden Inc), Agreement and Plan of Merger (Revlon Inc /De/)
Financing. (a) Each Subject to the terms and conditions of this Agreement, Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrangeconsummate, obtain and consummate on a timely basis, on or prior to the Debt Closing Date, the Financing contemplated by the Commitment Letters on the terms and set forth therein (subject only to any “flex” provisions applicable to the conditions (including the Debt Financing; provided that such “market flex” provisions) set forth in provisions would not adversely affect the amount or availability of the Debt Commitment Letter as promptly as practicable after the date hereof, including using Financing). Parent shall use its reasonable best efforts to (i) maintain in effect the Commitment Letters and comply with the Debt Commitment Letterits obligations and conditions thereunder, (ii) negotiate and enter into definitive agreements on a timely basis with respect to the Debt Financing on the terms and conditions (subject only to any “flex” provisions applicable to the conditions (including the Debt Financing; provided that such “market flex” provisions) set forth in provisions would not adversely affect the Debt Commitment Letter (amount or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding availability of the Debt Financing) contained in the Commitment Letters or otherwise no less favorable to Parent with respect to timing, amount or conditions than those contained in the Commitment Letters (the “Financing at the ClosingAgreements”), reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, and (iii) satisfy (or have waived) on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Commitment Letters that are within its control at or prior to the Closing (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), and otherwise comply in all material respects with its obligations under the Commitment Letter and Letters (including the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek Financing Agreements). Parent shall keep the waiver Company reasonably informed of conditions applicable to Parent and Merger Sub contained material developments in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver respect of the conditions to Parent’s and Merger Sub’s obligations efforts to consummate arrange the ClosingFinancing, consummate including any changes to the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to respective amounts of the Debt Financing and Equity Financing. Prior to the Closing, without the prior written consent of the Company, Parent shall not agree to, or permit, any amendment, modification or supplement of, or waiver under, the Commitment Letters to the extent such amendment, modification, supplement or waiver would (vii) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations reduce the aggregate amount to be funded under the Financing (including by changing the amount of fees to be paid or original issue discount of the Debt Commitment Letter and Financing or similar fees) unless (x) in the definitive agreements relating to case of a reduction in the Debt Financing, the Equity Financing is increased by a corresponding amount or (y) in the case of a reduction in the Equity Financing, the Debt Financing is increased by a corresponding amount, (ii) amend, modify or supplement the conditions or contingencies to the Financing in a manner that would reasonably be expected to make it less likely the Financing will be funded or imposes new or additional conditions or expands any existing condition to the receipt of the Financing at the Closing or (iii) be reasonably expected to prevent or materially delay the consummation of the transactions contemplated by this Agreement. Parent shall promptly deliver to the Company true and completed copies of any such amendment, supplement, modification or waiver (which, in the case of fee letters, may be redacted to omit numerical amounts and certain economic “flex” terms, none of which would adversely affect the amount or availability of the Debt Financing). Notwithstanding the foregoing, (x) Parent may amend the Commitment Letters to add investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letters as of the date hereof and, in connection therewith, amend the economic and other arrangements with respect to the existing and additional investors, lenders, lead arrangers, bookrunners, syndication agents or similar entities, if the addition of such additional parties and amendment of additional terms do not adversely impact the aggregate amount of the Financing to be funded at the Closing and (y) in the event that Parent is required pursuant to this Section 7.11 to provide any information that is subject to attorney-client or similar privilege, Parent may withhold disclosure of such information so long as Parent gives notice to the Company of the fact that it is withholding such information and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to waive the applicable privilege or protection.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (KCG Holdings, Inc.), Agreement and Plan of Merger (Virtu Financial, Inc.)
Financing. (a) Each of Parent and Merger Sub Subsidiary shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, advisable or proper to obtain the proceeds of the Financing contemplated by the Commitment Letters on or advisable prior to arrange, obtain and consummate the Debt Financing Closing Date on the terms and subject only to conditions and in the conditions amounts described in the Commitment Letters (including the any “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofor such other terms and conditions that are more favorable to Parent and Merger Subsidiary, including using reasonable best efforts to (i) maintain maintaining in effect the Commitment Letters and comply any Definitive Debt Financing Agreements (as defined below) and complying with the Debt Commitment Letterits obligations thereunder, (ii) negotiate satisfying on a timely basis, taking into consideration the timing of the Closing and enter into definitive agreements with respect the completion of the Marketing Period, and in a manner that will not impede the ability of the parties hereto to consummate the Debt Financing on Merger promptly upon the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the CompanyClosing Date, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the all conditions to the funding of the Debt Financing at set forth in the Closing, reduce Commitment Letters and the aggregate amount of the Debt Definitive Debt/Preferred Equity Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateAgreements that are within its control, (iii) satisfy using reasonable best efforts to negotiate and enter into definitive debt or preferred financing agreements on a timely basis the terms and conditions contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable (including any “flex” provisions) or obtain the waiver of) all such other terms and conditions and covenants applicable that are more favorable to Parent and Merger Sub in Subsidiary (the “Definitive Debt/Preferred Equity Financing Agreements”), (iv) if the conditions under the Debt Commitment Letter or the Preferred Equity Commitment Letter, as applicable, are satisfied, consummating the applicable Debt/Preferred Equity Financing and causing the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations Debt/Preferred Equity Financing Sources to consummate the Closing, consummate the Debt their respective Financing at the Closing, (v) enforce complying with its rights obligations under the Commitment Letters and Definitive Debt/Preferred Equity Financing Agreements in a timely and diligent manner, taking into consideration the timing of the Closing and the completion of the Marketing Period and (vi) keeping the Company informed on a regular and current basis and in reasonable detail of the status of its efforts to arrange the Financing contemplated by the Commitment Letters and any other financing (including, by, upon reasonable request of the Company, promptly providing to the Company drafts of material definitive agreements for the Financing (and any amendments thereto entered into on or prior to the Closing) and giving the Company prompt notice of (i) any fact, change, event or circumstance that is reasonably likely to have, individually or in the aggregate, a material and adverse impact on the Financing contemplated by the Commitment Letters, (ii) any breach by any party to the Commitment Letters or Definitive Debt/Preferred Equity Financing Agreements of which Parent has become aware, (iii) the expiration or termination (or attempted or purported termination, whether or not valid) of the Debt Commitment Letter and or the definitive agreements relating Preferred Equity Commitment Letter, (iv) any written or electronic (including email) notice or communication by any Debt/Preferred Equity Financing Source with respect to any actual or threatened breach, default (or allegation thereof), repudiation by any party to any Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement or any refusal to provide, or stated intent that it will not provide, by any Debt/Preferred Equity Financing Source the Debt full amount of the Debt/Preferred Equity Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under contemplated by the Debt Commitment Letter or the Preferred Equity Commitment Letter for any reason, (v) Parent’s good faith belief, for any reason, that it may no longer be able to obtain all or any portion of any Financing contemplated by the Commitment Letters on the terms and the definitive agreements relating conditions described therein (after giving effect to any flex provisions), or (vi) receipt of any written notice or other written communication from any person with respect to any: (A) actual or potential breach, default, termination or repudiation by any party to the Debt FinancingCommitment Letter or any Definitive Debt/Preferred Equity Financing Agreement, (B) material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Definitive Debt/Preferred Equity Financing Agreement (other than ordinary course negotiations) and (C) the failure of any condition to the Debt/Preferred Equity Financing to be satisfied. Any breach of the Commitment Letters, the Financing agreements, any Alternative Financing commitment or any Definitive Debt/Preferred Equity Financing Agreements by Parent or Merger Subsidiary shall be deemed a breach by Parent of this Section 7.05.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (McAfee Corp.), Agreement and Plan of Merger (McAfee Corp.)
Financing. (a) Each of Parent and Merger Sub The Buyer Parties shall use their commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable necessary to arrange, obtain and consummate arrange the Debt Financing Refinancing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Refinancing Commitment Letter as promptly as practicable after the date hereofLetter, including using their commercially reasonable best efforts to (i) maintain in effect and comply with the Refinancing Commitment Letter; (ii) satisfy on a timely basis all conditions applicable to the Buyer Parties to obtaining the Debt Refinancing as set forth in the Refinancing Commitment Letter, Letter that are within its control; (iiiii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and conditions (including, if necessary, the flex provisions) contemplated by the Refinancing Commitment Letter or on other terms no less favorable to Buyer; (iv) comply with the Buyer’s obligations under the Refinancing Commitment Letter and the definitive agreements with respect thereto; (v) subject only to the terms and conditions contemplated in the Refinancing Commitment Letter, consummate the Debt Refinancing at or prior to the Effective Time; and (vi) enforce its rights under the Refinancing Commitment Letter. If any portion of the Debt Refinancing becomes unavailable on the terms and conditions (including the “market flex” flex provisions) set forth contemplated in the Debt Refinancing Commitment Letter (or the definitive agreements with respect thereto, the Buyer Parties shall promptly notify the MLP Parties and use their commercially reasonable efforts to amend, modify, supplement, alter, restate, substitute or replace the Debt Refinancing with other alternative financing, on other terms no less favorable to Buyer, as consented promptly as possible; provided, however, that the Buyer Parties shall not permit any amendment, modification, supplement, alteration, restatement, substitution or replacement of the Refinancing Commitment Letter or the Debt Refinancing on terms that are less favorable to by Buyer, without the Companyprior consent of the MLP Parties, such consent not to be unreasonably withheld, delayed or conditioned). In such event, in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing.term “
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Inergy Midstream, L.P.), Agreement and Plan of Merger (Inergy L P)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things reasonably necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Financing as promptly as practicable on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Financing Commitment Letter (provided that Parent and Merger Sub may replace or amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as promptly as practicable after of the date hereof, or otherwise so long as such replacement or amendment would not adversely impact or delay in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Commitment, subject to the foregoing replacement and amendment rights, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained to obtaining the Debt Financing set forth in such the Debt Financing Commitment Letter that are within their control (including by consummating the financing pursuant to the terms of the Equity Financing Commitment and by assisting in the syndication or such marketing of the financing contemplated by the Debt Financing Commitment) and (iii) enter into definitive agreements related theretowith respect thereto on the terms and conditions contemplated by the Financing Commitment or on other terms reasonably acceptable to Parent that would not adversely impact in any material respect the ability of Parent or Merger Sub to consummate the transactions contemplated hereby. Subject to the terms and conditions contained herein and the satisfaction of the conditions set forth in Section 7.1, (ivSections 7.2(a) upon and 7.2(b) and the satisfaction or waiver of the conditions set forth in Section 7.3, at the Closing Parent shall use its reasonable best efforts to Parent’s and Merger Sub’s obligations cause the lenders under the Debt Financing to fund the Debt Financing required to consummate the Closing, consummate transactions contemplated hereby if the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating conditions to the Debt Financing and (vi) otherwise comply with Commitment are then satisfied. Without limiting Parent’s obligations under this Section 6.13, if any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Financing Commitment, Parent shall use its reasonable best efforts to arrange to obtain alternative financing from alternative sources on terms not materially less beneficial to Parent and Merger Sub’s covenants and other obligations under Sub in an amount sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event but in no event later than the Termination Date. Parent shall give the Company prompt notice of any material breach by any party to the Financing Commitments of which Parent or Merger Sub becomes aware, or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange the Debt Commitment Letter Financing and the definitive agreements relating provide copies of all documents related to the Debt FinancingFinancing (other than any ancillary documents subject to confidentiality agreements) to the Company. Notwithstanding the foregoing, compliance by Parent with this Section 6.13(a) shall not relieve Parent of its obligation to consummate the transactions contemplated by this Agreement whether or not the Debt Financing is available.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (ReAble Therapeutics Finance LLC), Agreement and Plan of Merger (Djo Inc)
Financing. (a) Each Parent has delivered to the Company true and complete fully executed copies of (i) executed commitment letter(s), dated as of the date hereof between Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on Sources party thereto (including all exhibits, schedules and annexes thereto, and the executed fee letters (the “Fee Letters”) associated therewith (provided that the amount of fees, flex provisions, pricing terms and subject only to the conditions (including the “market flex” provisions) pricing caps set forth in the Debt Commitment Letter as promptly as practicable after the date hereofany fee letter may be redacted; provided, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letterfurther, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding that none of the Debt Financing at redacted terms (x) could reasonably be expected to adversely affect the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity availability of the Debt Financing or prevent(y) affect the conditionality, impede enforceability, availability or delay the consummation aggregate principal amount of the Debt Financing), as the same may be amended pursuant to Section 5.15, collectively, the “Debt Financing on Commitment Letter” and, together with the Closing DateEquity Commitment Letter, (iiithe “Financing Commitment Letters”) satisfy on a timely basis (pursuant to which the lender parties thereto have agreed, subject to the terms and conditions thereof, to provide or obtain cause to be provided the waiver of) all conditions and covenants applicable to Parent and Merger Sub debt financing in the amounts set forth therein (the “Debt Financing”) and (ii) the Equity Commitment Letter Letter, pursuant to which the Guarantors have agreed and committed, subject to the definitive agreements related thereto orterms and conditions thereof, if necessary or deemed advisable by to invest in Parent, seek directly or indirectly, the waiver cash amounts set forth therein (such financing, the “Equity Financing” and, together with the Debt Financing, the “Financing Commitments”) for the purpose of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to satisfying Parent’s obligations under this Agreement, including under Article II, and Merger Sub’s obligations to consummate the Closing, consummate transactions contemplated hereby and to pay all fees and expenses reasonably expected to be incurred in connection herewith and with the Debt Financing at the Closing, (v) enforce its rights under the Debt Financing. The Equity Commitment Letter provides that the Company is an express third-party beneficiary thereof and Parent and the definitive agreements relating Guarantors will not oppose the granting of an injunction, specific performance or other equitable relief in connection with the exercise of such third-party beneficiary rights, in each case subject to the Debt Financing terms and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under conditions set forth in the Debt Equity Commitment Letter and the definitive agreements relating to the Debt FinancingLetter.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Barnes & Noble Inc), Agreement and Plan of Merger (Barnes & Noble Inc)
Financing. (a) Each of Parent and Merger Sub The Purchaser shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on or prior to the Closing Date on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter (as promptly as practicable after the date hereofsame may be amended, modified or replaced in accordance with this Section 8.08), including using its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with the Debt Commitment Letter, its obligations thereunder; (ii) negotiate and enter into definitive agreements with respect to execute the Debt Financing financing documents on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditionedincluding any “flex” provisions related thereto), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, ; (iii) satisfy on a timely basis (taking into account the expected timing of the Marketing Period), or obtain the a waiver of, the conditions to the Debt Commitment Letter that are within the Purchaser’s control (but excluding any condition where the failure to be so satisfied is a direct result of the Company’s failure to furnish information as required under Section 7.08 or the Company’s or the Seller’s breach of any of their respective other obligations under this Agreement); (iv) all conditions and covenants applicable subject to Parent and Merger Sub in the terms of the Debt Commitment Letter and upon the definitive agreements related thereto orsatisfaction of the conditions set forth in the Debt Commitment Letter, if necessary enforce its rights to consummate the Debt Financing or deemed advisable by Parent, seek to cause the waiver of conditions applicable Debt Financing Sources and the other persons committing to Parent and Merger Sub contained in such fund the Debt Financing to fund the Financing at the Closing under the Debt Commitment Letter (provided, however, that in no event shall reasonable best efforts include any obligation on the part of Purchaser or such definitive agreements related theretoany of its Affiliates to commence or thereafter to commence any litigation, arbitration, action or other adjudicatory or legal proceeding against any Debt Financing Source); and (ivv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations set forth in the Debt Commitment Letter, to consummate the Debt Financing at or prior to the Closing, consummate including using its reasonable best efforts to cause the Debt Financing Sources and the other persons committing to fund the Debt Financing to fund the Debt Financing at the Closing. The Purchaser shall not permit or agree to any termination, (v) enforce its rights under amendment or modification to be made to, or any waiver of any provision under, or any replacement of, any of the Debt Commitment Letter and if such termination, amendment, modification, waiver or replacement (A) reduces (or would have the definitive agreements relating to effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount), unless the representation and warranty set forth in Section 6.08 hereof (vias though made at the time of the effectuation of such termination, amendment, modification, waiver or replacement) shall remain true and correct; or (B) imposes new or additional conditions or otherwise comply with Parent’s and Merger Sub’s covenants and expands, amends or modifies any of the conditions to the receipt of the Debt Financing, or otherwise expands, amends or modifies any other obligations under provision of the Debt Commitment Letter and in a manner that would reasonably be expected to (x) delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Commitment Letter that are in the Purchaser’s control) on the Closing Date or (y) adversely impact the ability of Purchaser to enforce its rights against other parties to the Debt Commitment Letter or solely to the extent definitive loan agreements are entered into prior to the Closing Date, the definitive agreements relating with respect thereto; provided that (i) the Purchaser shall not be deemed to have violated this Section 8.08 if the Purchaser shall have (A) provided prior written notice to the Seller of any termination, amendment, modification, waiver or replacement it proposes to take or any other event, fact or circumstance that would be restricted by the foregoing provisions of this Section 8.08 and (B) demonstrated (to the reasonable satisfaction of the Seller) that it has other funds available to it (on conditions not materially less favorable in the aggregate to the Purchaser than the conditions to the Debt FinancingCommitment Letter) that are sufficient to pay all other amounts required to be paid by the Purchaser pursuant to this Agreement and in connection with the transactions contemplated by this Agreement, and (ii) for the avoidance of doubt, neither the existence nor the exercise of any “flex” provision in the Debt Commitment Letter shall constitute a breach of (or notice under) this provision or any other provision of this Agreement. Purchaser shall promptly deliver to the Seller copies of any such termination, amendment, modification, waiver or replacement of the Debt Commitment Letter. In no event shall the Purchaser have any liability for breach of its covenants or agreements in this Section 8.08 if the Closing occurs.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Financing. (a) Subject to the terms and conditions of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Letters (or terms no less favorable to Parent or the Company (including with respect to the conditionality thereof)) and shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under the Financing Letters, if such amendment, modification, waiver or remedy reduces the aggregate amount of the Financing or amends the conditions precedent to the Financing in a manner that would reasonably be expected to delay or prevent the Closing Date or make the funding of the Financing less likely to occur; provided that Parent and Merger Sub may replace and amend the Debt Commitment Letters so long as (i) the aggregate amount of the debt financing contemplated thereby is not decreased by an amount that exceeds the amount, if any, by which the aggregate amount of the equity financing contemplated by the Equity Financing Letters is increased, (ii) the terms are no less favorable to Parent or the Company, including with respect to conditionality thereof, and (iii) would not expand the conditions to the debt financing set forth in the Debt Commitment Letters as of the date hereof in a manner that would reasonably be expected to delay or prevent the Closing; and in any such event Parent shall disclose to the Company its intention to obtain such alternative financing, shall keep the Company informed of the terms thereof and shall deliver to the Company final drafts of the Debt Commitment Letters providing for such alternative financing and, if requested to do so, the Company shall within a reasonable time (and in no event more than 3 business days thereafter) inform Parent as to whether it agrees that such alternative financing is on terms no less favorable (including, with respect to the conditionality thereof) to the Company than the Financing Letters. For purposes of this Section 5.5, references to “Financing” shall include the financing contemplated by the Financing Letters as permitted to be amended, modified or replaced by this Section 5.5(a) and references to “Debt Commitment Letters” shall include such documents as permitted to be amended, modified or replaced by this Section 5.5(a). Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) to maintain in effect the Financing Letters and comply with the Debt Commitment Letter, (ii) to negotiate and enter into definitive agreements with respect to the Debt Financing Commitment Letters on the terms and subject only to the conditions (including the “market flex” flex provisions) contained in the Debt Commitment Letters (or on terms no less favorable to Parent or Merger Sub than the terms and conditions (including flex provisions) in the Debt Commitment Letters), (ii) to satisfy all conditions applicable to it and within its control in such definitive agreements and consummate the Financing at or prior to the Closing, and (iii) to comply with its obligations under the Financing Letters. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements, including fee letters and engagement letters). In the event that all conditions in the Financing Letters (other than in connection with the Debt Financing, the availability of funding of any of the Equity Financing) have been satisfied or, upon funding will be satisfied, and taking into account the obligations of Parent and Merger Sub with respect to bridge financing, Parent and Merger Sub shall use their reasonable best efforts to cause such lenders and the other Persons providing such Debt Financing to fund on the Closing Date the Debt Financing required to consummate the Merger and the other Transactions. In the event that (i) all conditions in Sections 6.1 and 6.2 have been satisfied (or, with respect to certificates to be delivered at the Closing, are capable of being satisfied upon the Closing) at the time when the Closing would have occurred but for the failure of the Equity Financing to be funded, (ii) the financing provided for by the Debt Commitment Letters (or, if alternative financing is being used in accordance with this Section 5.5, pursuant to the commitments with respect thereto) has been funded or will be funded at the Closing if the Equity Financing is funded at the Closing, and (iii) the Company has irrevocably confirmed that if the Equity Financing and the Debt Financing are funded such that the Closing pursuant to Article II could occur, the Company is willing to waive all conditions in Section 6.3, Parent shall enforce its rights under the Equity Funding Letters to cause the Equity Financing to be funded at the Closing. If any portion of the Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated by the Debt Commitment Letters, (A) Parent and Merger Sub shall immediately notify the Company and (B) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient to consummate the Transactions with terms and conditions not materially less favorable to Parent than the terms and conditions set forth in the Debt Commitment Letter Letters (including the flex provisions) (as determined in the reasonable judgment of Parent) as promptly as practicable following the occurrence of such event but no later than the final day of the Marketing Period. Parent shall give the Company prompt notice of any material breach by any party to the Financing Letters or on other terms as consented to by the Company, such consent of any condition not likely to be unreasonably withheld, delayed or conditioned)satisfied, in each case, of which shall not expand on Parent or Merger Sub becomes aware or any termination of the conditions to Financing Letters. For the funding avoidance of doubt, in the event that (x) all or any portion of the Debt Financing at structured as privately offered notes is not yet received by Parent or Merger Sub, (y) the Closingconditions to closing in Article VI (other than the delivery of officers’ certificates contemplated in Sections 6.2(a), reduce 6.2(b), 6.3(a) or 6.3(b)) shall have been satisfied or waived and (z) the aggregate amount bridge facilities contemplated by the Debt Commitment Letters (or alternative bridge financing obtained in accordance with this Agreement) are available in all material respects on the terms and conditions (including the flex provisions) described in the Debt Commitment Letters (or described in replacements thereof on terms and conditions no less favorable to Parent or Merger Sub or alternative financing thereof), then Parent shall cause the proceeds of such bridge financing (or replacement or alternative financing) to be used to replace such privately offered note financing no later than the final day of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Marketing Period. Parent and Merger Sub acknowledge and agree that the obtaining of the Financing, or any alternative financing, is not a condition to Closing. Notwithstanding anything contained in the Debt Commitment Letter and the definitive agreements related thereto orthis Section 5.5 or in any other provision of this Agreement, if necessary in no event shall Parent or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter be required (1) to amend or such definitive agreements related thereto, (iv) upon the satisfaction or waiver waive any of the terms or conditions to Parent’s and Merger Sub’s obligations hereof or (2) to consummate the Closing, consummate Closing any earlier than the Debt Financing at final day of the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingMarketing Period.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Avaya Inc)
Financing. (a) Each of Parent Parent, Merger Sub and Merger Sub I shall use its reasonable best efforts (taking into account the expected timing of the Marketing Period) to take, take (or cause to be taken) all actions, all reasonable actions and to do, do (or cause to be done, ) all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) maintain negotiate definitive agreements with respect thereto on the terms and conditions (including the flex provisions) contained therein or on other terms not materially less favorable, in effect the aggregate, to Parent (as determined in the reasonable judgment of Parent) and comply with the Debt Commitment Letternot in violation of this Section 5.15(a) (including clauses (A)-(C) below), (ii) negotiate satisfy (or, if deemed advisable by Parent, seek a waiver of) on a timely basis all conditions applicable to Parent, Merger Sub and enter into definitive agreements Merger Sub I in the Debt Financing Commitments that are within its control and otherwise comply with respect its obligations thereunder and pay related fees and expenses on the Closing Date, (iii) maintain in effect the Debt Financing Commitments in accordance with the terms thereof (except for amendments and supplements not prohibited by this Section 5.15(a)) until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms, and (iv) enforce its rights under the Debt Financing Commitments in the event of a breach by any counterparty thereto that would reasonably be expected to materially impede or delay the Closing. Parent shall have the right from time to time to amend, supplement, amend and restate or modify the Debt Financing Commitments; provided, that any such amendment, supplement, amendment and restatement or other modification shall not, without the prior written consent of the Company (A) add new (or adversely modify any existing) conditions precedent to the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) as set forth in the Debt Commitment Letter (or on other terms Financing Commitments as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand effect on the conditions to the funding of the Debt Financing at the Closingdate hereof, (B) reduce the aggregate amount of the Debt Financing available Commitments (including by changing the amount of fees to be funded at the Closing, impair the validity paid or original issue discount of the Debt Financing as set forth in the Debt Financing Commitments) in a manner that would adversely impact in any material respect the ability of Parent to consummate the Merger or that would otherwise be expected to delay or impede the Merger or (C) otherwise be reasonably expected to (I) prevent, impede or delay the consummation of the Merger and the other transactions contemplated by this Agreement, (II) make the funding of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub as set forth in the Debt Commitment Letter and Financing Commitments less likely to occur or (III) adversely impact the definitive agreements related thereto or, if necessary or deemed advisable by ability of Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon Merger Sub I to enforce their rights against the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating other parties to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and Commitments or the definitive agreements relating with respect thereto. For the avoidance of doubt, but subject to the foregoing, Parent may amend, supplement, amend and restate, modify or replace the Debt Financing Commitments as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement or (y) to increase the amount of Indebtedness contemplated by the Debt Financing Commitments. For purposes of this Section 5.15, references to “Debt Financing.” shall include the financing contemplated by the Debt Financing Commitments as permitted to be amended, supplemented or modified by this Section 5.15(a) (and, if applicable, shall include any Alternative Financing used to satisfy the obligations under this Agreement) and references to “Debt Financing
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Urs Corp /New/), Agreement and Plan of Merger (Aecom Technology Corp)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only conditions described in the Financing Commitments or, at Parent’s election, on other terms that would not adversely impact the ability of Parent or Merger Sub to timely consummate the transactions contemplated hereby, including using its reasonable best efforts (i) to maintain in effect the Financing Commitments and to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments (or, at Parent’s election, on other terms that would not adversely impact the ability of Parent or Merger Sub to timely consummate the transactions contemplated hereby), (ii) to satisfy all conditions applicable to Parent in such definitive agreements and consummate the Financing at or prior to the conditions Closing, except to the extent requiring action by the Company or any of its Subsidiaries, (including iii) to comply with its obligations under the Financing Commitments and (iv) to enforce all of its rights under the Financing Commitments. Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements). In connection with its obligations under this Section 5.9, Parent shall be permitted to amend, modify or replace the Debt Commitment Letters with new Debt Commitment Letters (the “market flex” provisions) set forth in New Financing Commitments”), provided that Parent shall not permit any replacement of, or amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter as promptly as practicable after the date hereofif, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (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 on other terms as consented to by the Companyreasonable judgment of Parent, such consent not to be unreasonably withheldreplacement, delayed amendment, modification, waiver or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce remedy (1) reduces the aggregate amount of the Debt Financing available below that amount required to be funded at consummate the ClosingMerger and the other transactions contemplated hereby, impair (2) adversely amends or expands the validity conditions to the drawdown of the Debt Financing in any respect that could make such conditions less likely to be satisfied by the End Date or preventthat would expand the possible circumstances under which such conditions would not be satisfied by such date, impede or (3) can reasonably be expected to delay the consummation Closing or the date on which the Financing would be obtained, or (4) is otherwise adverse to the interests of the Company prior to the occurrence of the Closing in any other material respect; and provided, further, that nothing in this Section 5.9 shall be deemed to excuse, waive compliance with or modify any of the obligations set forth in the Confidentiality Agreement. In the event that all conditions to the Financing Commitments (other than, in connection with the Debt Financing, the availability or funding of any of the Equity Financing) have been satisfied, Parent shall, from and after the final day of the Marketing Period and subject to the satisfaction of the conditions set forth in Sections 6.1 and 6.3 hereof, use its reasonable best efforts to cause the lenders and other Persons providing such Financing to fund the Financing required to consummate the Merger on the Closing Date. In the event that Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing unlikely to occur in the manner or from the sources contemplated in the Financing Commitments, Parent shall notify the Company and shall use its reasonable best efforts to arrange as promptly as practicable, but in no event later than one day prior to the Closing Date, any such portion from alternative debt financing sources on terms and conditions no less favorable to Parent and no more adverse to the ability of Parent to consummate the transactions contemplated by this Agreement (in each case, as determined in the reasonable judgment of Parent). In the event that on the final day of the Marketing Period (1) all or any portion of the Debt Financing on the Closing Datestructured as high yield financing has not been consummated, (iii) satisfy on a timely basis (or obtain the waiver of2) all closing conditions contained in Article VI shall have been satisfied or waived (other than those conditions that by their nature will not be satisfied until the Closing) and covenants applicable to Parent and Merger Sub (3) the bridge financing as described in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoLetters, (ivor alternative bridge financing obtained in accordance with the preceding sentence) upon is available substantially on the satisfaction or waiver of the terms and conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under described in the Debt Commitment Letter Letters (or replacements thereof as contemplated by the preceding sentence), then Parent shall borrow under and use the definitive agreements relating proceeds of the bridge financing (or such alternative bridge financing) to replace such affected portion of the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under high yield financing no later than the Debt Commitment Letter and last day of the definitive agreements relating to the Debt Financing.Marketing Period. For purposes of this Agreement, “Marketing
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain arrange and consummate the Debt Financing on the terms and subject only to conditions described in or contemplated by the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Commitments, including using reasonable best efforts to (i) maintain in full force and effect and comply with the Debt Commitment LetterFinancing Commitments until the earliest of the consummation of the transactions contemplated hereby, the termination of this Agreement or the time at which any Alternative Financing is obtained, (ii) satisfy on a timely basis, to the extent within their control, all conditions to funding in the Debt Financing Commitments and such definitive agreements to be entered into pursuant thereto (including by consummating the Equity Financing at or prior to the Offer Acceptance Time), (iii) negotiate and enter into definitive agreements with respect to thereto on terms and conditions described in the Debt Financing on the terms and subject only to the conditions Commitments (including the any “market flex” provisionsprovisions contained therein) set forth or otherwise consistent in all material respects with the Debt Commitment Letter (or Financing Commitments and on other terms as consented that would not (A) reduce the aggregate principal amount of the Debt Financing to an amount that would be less than an amount that would be required to consummate the Offer and the Merger and make the other payments required by Parent, Merger Sub and the Company, such consent not Surviving Corporation hereunder or otherwise contemplated in connection herewith and repay or refinance the debt contemplated in this Agreement or the Financing Commitments (unless the Equity Financing is increased by a corresponding amount) or (B) impose new or additional conditions or otherwise adversely amend or modify any of the conditions to be unreasonably withheld, delayed or conditioned)the receipt of the Financing, in each case, which shall not expand on in a manner that would reasonably be expected to prevent or materially delay the conditions to the funding receipt of the Debt Financing prior to the Closing Date and (iv) in the event that all conditions in the Debt Financing Commitments have been satisfied, consummate the Debt Financing contemplated under the Debt Financing Commitment required to consummate the Offer and the Merger and the other transactions contemplated hereby. Parent shall use its reasonable best efforts to obtain the Equity Financing contemplated by the Equity Financing Commitment upon satisfaction or waiver of the Offer Conditions (other than conditions that by their nature are to be satisfied or waived at the ClosingOffer Acceptance Time). To the extent reasonably requested by the Company from time to time, reduce Parent shall keep the aggregate amount Company informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternative Financing) and Parent shall provide to the Company copies of all documents reasonably requested by the Company related to the Financing (or Alternative Financing), except that provisions related to fees (including any fee letters), pricing, “market flex” (other than any structure flex) and other customary economic or commercially sensitive terms may be redacted in a customary manner; provided, that in no event will Parent or Merger Sub be under any obligation to disclose any information that (x) is subject to attorney-client, attorney work product or other legal privilege or doctrine if Parent or Merger Sub shall have used its commercially reasonable efforts to disclose such information in a manner that would not waive such privilege or doctrine or (y) would contravene any applicable Law. In the event any portion of the Debt Financing available to be funded at becomes unavailable on the Closing, impair the validity of terms and conditions contemplated in the Debt Financing Commitments for any reason (A) Parent shall promptly notify the Company in writing and (B) Parent and Merger Sub shall use, and shall cause their respective subsidiaries to use, their reasonable best efforts to arrange to obtain alternative financing from alternative sources (the “Alternative Financing”) in an amount, when added with Parent and Merger Sub’s existing cash on hand and the Equity Financing Commitment, sufficient to consummate the transactions contemplated by this Agreement as promptly as practicable following the occurrence of such event, which would not (i) involve terms and conditions that are less beneficial in the aggregate to Parent or Merger Sub and (ii) would not reasonably be expected to prevent, impede or delay the consummation of the Closing. Without limiting the generality of the foregoing, Parent shall promptly notify the Company in writing of (A) the receipt by Parent or Merger Sub of any written notice or other written communication from any lender or other debt financing source with respect to any actual breach, default, repudiation, cancellation or termination by any party to the Financing Commitment, (B) any material dispute or disagreement between or among any parties to any Financing Commitments (excluding, for the avoidance of doubt, ordinary course negotiations with respect to the terms of the Debt Financing) or (C) Parent becoming aware of any fact, circumstance, event or other reason that it reasonably expects will result in (x) Parent not being able to obtain all or any portion of the Financing contemplated to be funded at the Closing on the Closing Datematerial terms, in the manner or from the sources contemplated by the Financing Commitments or (y) the prevention, impediment or delay of the consummation of the Closing. As soon as reasonably practicable, Parent shall provide any information reasonably requested in writing by the Company relating to any circumstance referred to in clause (A), (iiiB) satisfy on a timely basis or (C) of the immediately preceding sentence that is in Parent’s possession; provided, that in no event will Parent or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub be under any obligation to disclose any information that (x) is subject to attorney-client, attorney work product or other legal privilege or doctrine if Parent or Merger Sub shall have used its commercially reasonable efforts to disclose such information in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary a manner that would not waive such privilege or deemed advisable by doctrine or (y) would contravene any applicable Law. Parent, seek Merger Sub and Guarantor shall not (without the prior written consent of the Company) consent or agree to any amendment, replacement, supplement or modification to, or any waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter any provision under, the Financing Commitments or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and if such amendment, replacement, supplement, modification or waiver (vi1) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under decreases the Debt Commitment Letter aggregate amount of the Financing to an amount that would be less than an amount that would be required to consummate the Offer and the definitive agreements Merger and make the other payments required by Parent, Merger Sub and the Surviving Corporation hereunder, (2) imposes new or additional conditions or otherwise adversely expands, amends or modifies any of the conditions to the receipt of the Financing, (3) could reasonably be expected to prevent, impede or delay the consummation of the transactions contemplated by this Agreement, or (4) materially and adversely impacts the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Commitments. Parent shall furnish to the Company a copy of any amendment, modification, waiver or consent of or relating to the Financing Commitments promptly upon execution thereof. Parent and Merger Sub shall use their reasonable best efforts to maintain the effectiveness of the Financing Commitments until the transactions contemplated by this Agreement are consummated; provided, however, for the avoidance of doubt, Parent and Merger Sub may amend, replace, supplement and/or modify the Debt Financing.Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Financing Commitments as of the date hereof. Parent shall provide the Company, upon reasonable request, with such information and documentation as shall be reasonably necessary to allow the Company to monitor the progress of such financing activities. Upon any amendment, supplement or modification of the Financing Commitments made in compliance with this Section 7.10(a), Parent shall provide a copy thereof to the Company and the term “
Appears in 1 contract
Samples: Agreement and Plan of Merger (Seacor Holdings Inc /New/)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable actions and best efforts to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt proceeds of the Financing on the terms and subject only to conditions described in the conditions Commitment Letters (including including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter) set forth in the Debt Commitment Letter as promptly as practicable after possible (taking into account the expected timing of the Marketing Period) but in any event on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using reasonable best efforts with respect to (i) causing the Equity Investors to maintain in effect and comply with the Equity Commitment Letters, (ii) maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) consistent with the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms as consented that (A) are acceptable to Parent in its sole discretion, (B) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by the Company, such consent not to be unreasonably withheld, delayed or conditionedSection 5.12(b), in each case, which shall not expand on and (iv) taking into account the conditions to the funding expected timing of the Debt Financing at Marketing Period, satisfying (or, if reasonably required to obtain the ClosingFinancing, reduce seeking the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iiiwaiver of) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto orDefinitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event that all conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be satisfied at the Closing) have been satisfied or waived, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoshall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, (iv) upon the satisfaction or waiver of the conditions including to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate fund the Debt Financing at the Closing(including, (v) enforce subject to Section 8.7(c), by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its rights under the Debt Commitment Letter and the definitive agreements relating to portion of the Debt Financing and (vi) or otherwise comply with Parent’s and Merger Sub’s covenants and other its obligations under the Debt Commitment Letter or Definitive Agreements). Each of Parent and Merger Sub shall use its reasonable best efforts to comply with its respective obligations, and enforce its respective rights, under the definitive agreements relating to the Debt FinancingCommitment Letters and Definitive Agreements in a timely and diligent manner.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ultimate Software Group Inc)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only has delivered to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter Company true, correct and complete copies, as promptly as practicable after of the date hereof, including using reasonable best efforts to of (i) maintain an executed commitment letter (the “Equity Commitment Letter”), pursuant to which certain Buyer Group Parties have agreed, subject to the terms and conditions set forth therein, to provide equity financing to Parent or a wholly owned subsidiary of Parent in effect and comply connection with the Merger (collectively, the “Buyer Group Financing”), and (ii) an executed debt commitment letter and related term sheets (the “Debt Commitment Letter” and together with the Equity Commitment Letter, (ii) negotiate the “Financing Commitments”), pursuant to which, and enter into definitive agreements with respect subject to the Debt Financing on the terms and subject only conditions thereof, the lenders specified therein have committed to provide Parent or the Surviving Corporation with loans in the amounts set forth therein (the “Debt Financing” and together with the Buyer Group Financing, the “Financing”). As of the date hereof, the Financing Commitments are in full force and effect and have not been withdrawn or terminated or otherwise amended or modified in any respect. Parent or Merger Sub has fully paid any and all commitment fees or other fees in connection with the Financing Commitments that are payable on or prior to the date hereof and the Financing Commitments are the valid, binding and enforceable obligations of Parent and the other parties thereto in accordance with their terms subject, as to enforceability, to bankruptcy, insolvency, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights and to general principles of equity. The Financing, subject to the terms and conditions (including of the “market flex” provisions) set forth Financing Commitments, and cash on hand in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding Company constitute all of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay financing required for the consummation of the Debt Financing on Merger and the Closing Dateother transactions contemplated hereby, (iii) satisfy on a timely basis (and are sufficient for the payment of the aggregate Merger Consideration and the aggregate Option Consideration, any repayment or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub refinancing of debt contemplated in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by fees and expenses of Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained and their respective Representatives incurred in such Debt Commitment Letter connection with the transactions contemplated hereby and any other amounts required to fund the payments required to be made by Parent or such definitive agreements related theretoMerger Sub pursuant to this Agreement (including any payments that may be required pursuant to the Indenture or any Parent Termination Fee). Assuming the accuracy of the representations and warranties set forth in ARTICLE 3, (iv) upon the performance in all material respects by the Company of its obligations under this Agreement and satisfaction or waiver of the conditions set forth in Section 6.1, Section 6.2, and Section 6.3, as of the date hereof, Parent has no reason to believe that any of the conditions to Parentthe Financing contemplated by the Financing Commitments will not be satisfied or that the Financing will not be available to Parent or Merger Sub on the date of the Closing; however, notwithstanding the foregoing, without limiting any of the Company’s covenants hereunder, Parent acknowledges and agrees that its and the Merger Sub’s obligations hereunder are not subject to consummate or conditioned upon the Closing, consummate availability of the Debt Financing. The Financing at Commitments contain all of the Closing, conditions precedent to the obligations of the parties thereunder to make Financing available to Parent (vor its designee) enforce its rights under on the Debt Commitment Letter terms therein and the definitive agreements relating Financing Commitments are not subject to any conditions other than as set forth in the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCommitments.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use their commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofLetter, including using commercially reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions contained therein (including the “market flex” any related flex provisions) set forth in the Debt Commitment Letter (or on other terms as consented not materially less beneficial to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateParent and Merger Sub, (iiiii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in such definitive agreements that are within its control (including by consummating the Equity Investment pursuant to the terms of the Equity Commitment Letter) and (iii) consummate the Financing at Closing. Subject to the Closing of the Debt Financing or the Alternative Debt Financing (as defined below) concurrently therewith, Parent and Merger Sub shall obtain the Financing contemplated by the Equity Commitment Letter. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter and the definitive agreements related thereto orLetter, if necessary or deemed advisable by ParentPurchaser shall use its commercially reasonable efforts to arrange to obtain alternative financing (“Alternative Debt Financing”), seek the waiver of conditions applicable including from alternative sources, on terms that are not materially less beneficial to Parent and Merger Sub contained in as promptly as practicable following the occurrence of such event. Parent and Merger Sub shall give the Company prompt notice upon becoming aware of any breach by any party of the Debt Commitment Letter or such definitive agreements related theretoany termination of the Debt Commitment Letter. Parent and Merger Sub shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and shall not permit any material amendment or modification to be made to, (iv) upon the satisfaction or any waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closingany material provision or remedy under, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed). Parent and the definitive agreements relating Merger Sub shall provide notice to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to Company promptly upon receiving the Debt Financing. Parent and Merger Sub shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under, the Equity Commitment Letter without the prior written consent of the Company (such consent not to be unreasonably withheld or delayed).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ace Cash Express Inc/Tx)
Financing. (a) Each Subject to the terms and conditions of Parent and Merger Sub this Agreement, Buyer shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable such things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofhereof (taking into account the timing of the Marketing Period) and in any event at Closing, on the terms and conditions described in the Debt Commitment Letter (subject to the “flex” provisions applicable thereto), including using its reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterLetter in accordance with the terms and conditions thereof, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions contained therein (including the exercise of “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned)no less favorable, in each casethe aggregate, which shall not expand on the conditions to the funding of the Debt Financing at the ClosingBuyer, reduce the aggregate amount of the Debt Financing available including with respect to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, conditionality and (iii) satisfy on a timely basis (or obtain taking into account the waiver oftiming of the Marketing Period) all conditions and covenants applicable to Parent and Merger Sub Buyer in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek for the waiver Debt Financing that are within its control and otherwise comply with the terms of conditions applicable to Parent and Merger Sub contained in such the Debt Commitment Letter (to the extent the failure to comply with such terms would reasonably be expected to adversely impact the amount or such definitive agreements related thereto, (iv) upon the satisfaction or waiver timing of the conditions Debt Financing or the availability of the Debt Financing at Closing). Buyer shall use its reasonable best efforts to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at (including, if all conditions to the ClosingDebt Financing have been satisfied, (vby instructing the parties to the Debt Commitment Letter to provide the Debt Financing, on the terms and subject to the conditions set forth therein) and to enforce its rights under the Debt Commitment Letter at Closing, provided that notwithstanding the foregoing, it is agreed that Buyer shall not be required to file a lawsuit or take other legal action against the lenders or other Persons providing the Debt Financing. Buyer shall provide the Company, upon reasonable request, with such information and documentation as shall be reasonably necessary to allow the Company to monitor the progress of all Debt Financing activities. Buyer shall furnish correct and complete copies of all material definitive agreements relating entered into by Buyer after the date hereof in relation to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCompany promptly upon their execution if prior to the Effective Date (provided that any fee information and economics contained therein may be redacted).
Appears in 1 contract
Financing. Tenant agrees to pay upon demand all costs and expenses incurred by Landlord in connection with (i) the purchase and leasing of the Leased Premises and (ii) the financing of the initial charges and premiums, Loan, in either case, including, without limitation, the cost of appraisals, environmental reports, title insurance, surveys, transfer and recording fees and taxes, legal fees and expenses of Landlord's and Lender's counsel and Lender's commitment fees and points; provided that, Tenants obligations under this Paragraph 31(a) shall not exceed, in the aggregate, $350,000 plus the cost of transfer and recording fees and taxes and title insurance premiums and charges. Tenant agrees to pay, within three (3) business days of written demand thereof, any cost, charge or expense (other than the principal of the Note and interest thereon at the contract rate of interest specified therein) imposed upon Landlord by Lender pursuant to the Note, the Mortgage or the Assignment which is caused by any act or omission of Tenant, or any breach or default by Tenant of its obligations under this Lease, and which is not otherwise reimbursed by Tenant to Landlord pursuant to any other provision of this Lease. If Landlord desires to obtain or refinance any Loan, Tenant shall negotiate in good faith with Landlord concerning any request made by any Lender or proposed Lender for changes or modifications in this Lease. In particular, Tenant shall agree, upon request of Landlord, to supply any such Lender with such notices and information as Tenant is required to give to Landlord hereunder and to extend the rights of Landlord hereunder to any such Lender and to consent to such financing if such consent is requested by such Lender. Tenant shall provide any other consent or statement and shall execute any and all other documents that such Lender reasonably requires in connection with such financing, including any environmental indemnity agreement and subordination, non-disturbance and attornment agreement, so long as the same do not materially adversely affect any right, benefit or privilege of Tenant under this Lease or materially increase Tenant's obligations under this Lease. Such subordination, nondisturbance and attornment agreement may require Tenant to confirm that (a) Each Lender and its assigns will not be liable for any misrepresentation, act or omission of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing Landlord and (vib) otherwise comply with Parent’s Lender and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating its assigns will not be subject to the Debt Financingany counterclaim, demand or offsets which Tenant may have against Landlord.
Appears in 1 contract
Samples: Lease Agreement (Pw Eagle Inc)
Financing. (a) Each of Parent shall, and Merger Sub shall cause its Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all reasonable actions actions, and to do, or cause to be done, all reasonable things necessary, proper or advisable reasonably necessary to arrange, obtain and consummate the Debt Financing or any Substitute Financing in an amount sufficient, together with cash on hand that replaces or supplements the Financing consistent with the terms set forth in this Section 7.11, to consummate the Merger and subject only to the conditions other transactions contemplated hereby (including the “market flex” provisionspayment of the Cash Consideration, any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby) set forth in no later than the Debt Commitment Letter as promptly as practicable after Closing, including, to the date hereofextent necessary to consummate the Merger and such other transactions, including using reasonable best efforts to (i) (A) maintain in effect the Commitment Letter and in all material respects comply with the Debt Commitment Letterall of their respective obligations thereunder and (B) negotiate, (ii) negotiate and enter into and deliver definitive agreements with respect to the Debt Financing on reflecting the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on with other terms as consented agreed by Parent and the Financing Parties, subject to by the Company, such consent not to be unreasonably withheld, delayed or conditionedrestrictions on amendments of the Commitment Letter set forth below), so that such agreements are in each caseeffect no later than the Closing, which shall not expand and (ii) satisfying on a timely basis all the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto that are in Parent’s (or its Subsidiaries’) control. In the event that all conditions set forth in Section 8.1 and Section 8.2 have been satisfied or waived or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver funding of the conditions Financing, shall have been satisfied or waived, Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to Parent’s and Merger Sub’s obligations cause the Persons providing the Financing to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the ClosingMerger and the other transactions contemplated hereby (including the payment of the Cash Consideration, consummate any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Debt Financing at Merger and the Closingother transactions contemplated hereby). Parent and/or Holdco shall pay, (v) enforce its rights or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingLetter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Express Scripts Holding Co.)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or shall cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable necessary to arrange, obtain and consummate arrange the Debt Financing on the terms and subject only conditions described in the Debt Commitment Letters, including: (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including, as necessary, the “flex” provisions contained in any related fee letter) (or on other terms and conditions agreed by Parent, the Company and the Financing Sources) by the Closing Date, and (ii) to satisfy or cause to be satisfied (or, if determined advisable by Parent, obtain the waiver of) on a timely basis all conditions to obtaining the Debt Financing within Parent’s control and to comply or cause to be complied with all of its obligations pursuant to the Debt Commitment Letters and the definitive agreements related thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or the availability at Closing of sufficient aggregate proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent and Merger Sub shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by taking enforcement action to cause the “market flex” provisions) Financing Sources to provide the Debt Financing). Each of Parent and Merger Sub shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letters. Parent shall give the Company prompt notice of any material breach by any party to the Debt Commitment Letters or the definitive agreements related thereto of which Parent has become aware or any termination of any of the Debt Commitment Letters or such definitive agreements, to the extent such breach or termination could reasonably be expected to prevent or materially delay the Closing or otherwise result in sufficient proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement not being available at the Closing. In the event that any portion of the Debt Financing becomes unavailable and such portion is necessary to consummate the transactions contemplated by this Agreement (except in accordance with the express terms set forth in the Debt Commitment Letters or unless concurrently replaced on a dollar-for-dollar basis by commitments subject to substantially the same conditions as those set forth in the Debt Commitment Letter from other financing sources or from proceeds of other sources of financing or cash), Parent and Merger Sub shall (1) use their reasonable best efforts to obtain, as promptly as practicable after following the date hereofoccurrence of such event, including using reasonable best efforts alternative debt financing for any such portion from alternative debt sources (“ Alternative Financing ”) in an amount that will enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement and that does not contain additional (ior changes to the) maintain in effect and comply with the Debt Commitment Letter, (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 (delivered to the Company on or on other terms as consented prior to by the Company, such consent not to be unreasonably withheld, delayed or conditioned)date of this Agreement that, in each case, could reasonably be expected to adversely affect the ability of Parent or Merger Sub to timely consummate the transactions contemplated by this Agreement and (2) promptly notify the Company of such unavailability and the reason therefor. If obtained, Parent shall deliver to the Company true and complete copies of all agreements (including redacted copies of engagement and fee letters, removing only fee amounts, market “flex” provisions and certain other terms (none of which concern or would adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such alternative source shall have committed to provide Parent or the Surviving Corporation with Alternative Financing. Parent and Merger Sub shall not, without the Company’s prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreements related thereto unless the terms of such Debt Commitment Letter or definitive agreements related thereto, in each case as so amended, modified or waived, are substantially similar to those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall not expand on be as good as or better for Parent and Merger Sub than those in the conditions Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that, in the case of amendments or modifications of any Debt Commitment Letter or a definitive agreement relating thereto, the foregoing shall only apply if such amendment or modification (x) could reasonably be expected to (I) adversely affect the ability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or (II) make the timely funding of the Debt Financing at or the Closingsatisfaction of the conditions to obtaining the Debt Financing less likely to occur, reduce (y) reduces the aggregate amount of the Debt Financing available to be funded at or (z) materially and adversely affects the Closing, impair the validity ability of the Debt Financing Parent or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in to enforce their rights against other parties to the Debt Commitment Letter Letters, it being understood and agreed that in any event, Parent may amend the Debt Commitment Letters or the definitive agreements related relating thereto orto (x) add lenders, if necessary arrangers, bookrunners, agents, managers or deemed advisable by Parent, seek similar entities that have not executed the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver Letters as of the conditions date of this Agreement and consent to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate assignment after the Debt Financing at the Closing, (v) enforce its rights date of this Agreement of lending commitments under the Debt Commitment Letter and Letters to other lenders, or (y) increase the definitive agreements relating to aggregate amount of the Debt Financing. Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing and (vi) otherwise comply Source with Parentrespect to such Financing Source’s and Merger Sub’s covenants and other obligations failure or anticipated failure to fund its commitments under the any Debt Commitment Letter and Letters or definitive agreement in connection therewith. Parent shall keep the definitive agreements relating Company reasonably informed on a current basis of the status of its efforts to consummate the Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Financing. Parent shall use its reasonable best efforts to obtain the Financing on the terms and conditions described in the Financing Commitments or terms more favorable to Parent, including using its reasonable best efforts (ai) Each to maintain in effect the Financing Commitments and to negotiate definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitments, (ii) to satisfy all conditions applicable to Parent in such definitive agreements and consummate the Financing at or prior to the Closing, (iii) to comply with its obligations under the Financing Commitments and (iv) to enforce its rights under the Financing Commitments. Parent shall give the Company prompt notice upon becoming aware of any material breach by any party of the Financing Commitments or any termination of the Financing Commitments. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Company copies of all documents related to the Financing (other than any ancillary documents subject to confidentiality agreements). In connection with its obligations under this Section 5.10, Parent shall be permitted, but not obligated, to amend, modify or replace the Debt Commitment Letters with new Financing Commitments, including through co-investment by or financing from one or more other additional parties (the "NEW FINANCING COMMITMENTS"), PROVIDED that Parent shall not permit any replacement of, or amendment or modification to be made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter if such replacement (including through co-investment by or financing from one or more other additional parties), amendment, modification, waiver or remedy reduces the aggregate amount of the Financing below that amount required to consummate the Merger and the other transactions contemplated hereby, adversely amends or expands the conditions to the drawdown of the Financing in any respect that would make such conditions less likely to be satisfied or that would expand the possible circumstances under which such conditions would not be satisfied, that can reasonably be expected to delay the Closing, or is adverse to the interests of the Company in any other material respect; and PROVIDED, FURTHER, that nothing in this Section 5.10 shall be deemed to excuse, waive compliance with or modify any of the obligations set forth in the Confidentiality Agreement. In the event that Parent becomes aware of any event or circumstance that makes procurement of any portion of the Financing unlikely to occur in the manner or from the sources contemplated in the Financing Commitments, Parent shall notify the Company and shall use its reasonable best efforts to arrange as promptly as practicable, but in no event later than the last day of the Marketing Period, any such portion from alternative sources (including through co-investment by one or more other additional parties) on terms and conditions no less favorable to Parent or Merger Sub and no more adverse to the ability of Parent to consummate the transactions contemplated by this Agreement. The Company shall provide, and Merger Sub shall use reasonable best efforts to takecause its Representatives, or cause including legal and accounting, to be takenprovide, all reasonable actions cooperation reasonably requested by Parent in connection with the Financing and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain the other transactions contemplated by this Agreement (PROVIDED that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofits Subsidiaries), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect providing reasonably required information relating to the Debt Financing on the terms Company and subject only its Subsidiaries to the parties providing the Financing, which shall include all financial statements and financial data for the Company and its Subsidiaries (A) of the type required by Regulation S-X and Regulation S-K under the Securities Act and of the type and form customarily included in private placements under Rule 144A of the Securities Act to consummate any offering of senior or senior subordinated notes of the Company (or any direct or indirect parent thereof), including replacements thereof prior to any such information going "stale" or otherwise being unusable under applicable Law for such purpose and (B) all financial statements and information reasonably necessary for the satisfaction of the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (the "REQUIRED FINANCIAL INFORMATION"), (ii) participating in a reasonable number of meetings, drafting sessions and due diligence sessions in connection with the Financing, (iii) assisting in the preparation of (A) one or on more offering documents or confidential information memoranda for any of the Debt Financing (including the execution and delivery of one or more customary representation letters in connection therewith) and (B) materials for rating agency presentations, (iv) reasonably cooperating with the marketing efforts for any of the Debt Financing, including providing assistance in the preparation for, and participating in, reasonable meetings, due diligence sessions and similar presentations to and with, among others, prospective lenders, investors and rating agencies, (v) executing and delivering (or using reasonable best efforts to obtain from advisors), and causing its Subsidiaries to execute and deliver (or use reasonable best efforts to obtain from advisors), customary certificates (including a certificate of the chief financial officer of the Company with respect to solvency matters), accounting comfort letters, legal opinions, surveys, title insurance or other documents and instruments relating to guarantees, the pledge of collateral and other matters ancillary to the Financing as may be reasonably requested by Parent in connection with the Financing and otherwise reasonably facilitating the pledge of collateral and providing of guarantees contemplated by the Debt Commitment Letter, and (vi) delivering timely notice to its noteholders of the Company's intent to redeem its outstanding 9-1/8% Senior Subordinated Notes due 2011 in connection with the Financing; PROVIDED, HOWEVER, that no obligation of the Company or any of its Subsidiaries under any such certificate, document or instrument (other than the representation letter referred to above) shall be effective until the Effective Time and none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee that is not simultaneously reimbursed or incur any other liability in connection with the Financing prior to the Effective Time. Following the termination of this agreement in accordance with its terms as consented (other than pursuant to Section 7.1(b)(i) at a time when the Company is not eligible to terminate this Agreement pursuant to such section or pursuant to Section 7.1(d)) Parent shall promptly, upon request by the Company, such consent not to be unreasonably withheldreimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or any of its Subsidiaries in connection with the cooperation of the Company and its Subsidiaries contemplated by this Section 5.10, delayed and Parent shall further indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from and against any and all losses, damages, claims, costs or conditionedexpenses suffered or incurred by any of them in connection with the arrangement of the Financing and any information used in connection therewith (other than information provided in writing by the Company or its Subsidiaries), in each case, which shall not expand on the conditions except to the funding extent that such losses, damages, claims, costs or expenses, directly or indirectly, resulted from the willful misconduct of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCompany.
Appears in 1 contract
Financing. (a) Each of Parent Parent, Satellite Services and Merger Sub shall use use, and shall cause its Affiliates to use, commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Financing on the terms and conditions described in the Financing Letters pursuant to which the parties thereto have committed to provide the financing (such financing, or any financing in lieu thereof as contemplated by the Financing Letters, the “Financing Commitment”), including using commercially reasonable efforts (i) to maintain in effect the Financing Commitment in accordance with the terms and subject only to the conditions thereof, (including ii) to negotiate and enter into the “market flex” provisions) definitive agreements with respect thereto on the terms and conditions contained in the Financing Commitment (or on other terms acceptable to Parent, provided such terms do not contain any conditions to funding on the Closing Date that are not set forth in the Debt Financing Commitment Letter and would not otherwise reasonably be expected to impair or delay the consummation of the Financing), (iii) to satisfy (or cause its Affiliates to satisfy) on a timely basis all conditions to obtaining the Financing set forth in the Financing Commitment, (iv) to exercise its option to extend the Initial Date (as defined in the Financing Commitment) and to satisfy the conditions required to extend the Initial Date only to the extent that the Financing has not been obtained and (v) to consummate the Financing contemplated by the Financing Commitment at or prior to the Closing. In the event that any portion of the Financing becomes unavailable (including by expiration in accordance with its terms) on the terms and conditions set forth in the Financing Commitment, Parent shall promptly notify the Company, and Parent and Satellite Services shall use their reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, any such portion from alternative sources (“Alternative Financing”) on terms that will still enable Parent, Satellite Services and Merger Sub to consummate the transactions contemplated by this Agreement and that are approved by the Company (such approval not to be unreasonably withheld, conditioned or delayed). Parent and Satellite Services shall deliver to the Company true and complete copies of all agreements (including any fee letters and engagement letters, provided that amounts in such letters may be redacted unless such redactions would adversely affect the amount, conditionality, enforceability or availability of the Financing) pursuant to which any such alternative source shall have committed to provide Parent, Satellite Services or the Surviving Corporation with any portion of the Financing. None of Parent, Satellite Services or Merger Sub shall agree, without the Company’s prior written consent, to or permit any amendment, supplement or other modification of, or waive any of its rights under, the Financing Commitment if such amendment, supplement, modification or waiver (x) reduces the aggregate amount of the Financing or (y) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (I) delay or prevent the Closing Date, (II) make the funding of the Financing (or Table of Contents satisfaction of the conditions to obtaining the Financing) less likely to occur or (III) adversely impact the ability of each of Parent, Satellite Services and Merger Sub to enforce its rights against other parties to the Financing Commitment or the definitive agreements relating to the Financing. Any Alternative Financing shall (X) be in an amount sufficient to consummate the transactions contemplated by this Agreement (including paying the Merger Consideration, and all fees and expenses) and (Y) not impose new or additional conditions or otherwise expand, amend or modify any of the conditions to the receipt of the Financing in a manner that would reasonably be expected to (1) delay or prevent the Closing Date or (2) make the funding of the Financing (or satisfaction of the conditions to obtaining the Financing) less likely to occur; provided that neither Parent nor Merger Sub shall be required to arrange Alternate Financing on economic terms which are less favorable and other terms and conditions (other than conditions to funding) which are materially less favorable, in the aggregate, to Parent and Merger Sub than those included in the Financing Commitment. Upon obtaining any commitment for any Alternative Financing, such Alternative Financing shall be deemed to be the Financing Commitment for purposes of this Agreement. Parent shall keep the Company informed on a current basis of the status of its efforts to obtain the Financing, provide the Company copies of all documents related to the Financing and give the Company prompt notice of any material breach by any party to the Financing Commitment of which Parent becomes aware or any termination of the Financing Commitment. Without limiting the foregoing, Parent agrees to notify the Company promptly, and in any event within two Business Days, if at any time (A) any of the Financing Letters shall expire or be terminated for any reason, (B) any financing source that is a party to any of the Financing Letters notifies Parent, Satellite Services or Merger Sub that such source no longer intends to provide financing on the terms set forth therein or (C) to the knowledge of Parent (without a requirement of due inquiry), any party to any of the Financing Letters is or is alleged to be in breach or default thereafter. In the event that the Stockholders’ Written Consents are not delivered to the Company in accordance with Section 5.3(b), the parties shall use their respective reasonable best efforts to market the Financing concurrently with the solicitation of proxies in connection with the Company Stockholders Meeting, subject to the concurrence of the underwriters and lead arrangers that doing so will not adversely affect the marketing of the Financing, with the objective of completing the Merger as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCompany Stockholders Meeting.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hughes Network Systems, LLC)
Financing. (a) Each of Parent and Merger Sub acknowledge that, other than the obligations expressly set forth in this Agreement, the Company, its Subsidiaries and their respective Representatives, have no responsibility, directly or indirectly, prior to the Closing for any financing that Parent or Merger Sub may raise or seek to raise in connection with the transactions contemplated by this Agreement. Subject to the terms and conditions of this Agreement, Parent (i) shall use its reasonable best efforts to takearrange and obtain the Debt Financing on the terms and conditions (including the flex provisions) described in the Debt Financing Commitment (taking into account the anticipated timing of the Marketing Period), including using its reasonable best efforts to (x) negotiate definitive agreements on the terms and conditions contained in the Debt Financing Commitment, (y) satisfy, or cause the satisfaction of, on a timely basis all conditions in the Debt Financing Commitment and the definitive agreements for the Debt Financing, and (z) consummate the Debt Financing on or prior to the date on which the Closing is required to occur pursuant to Section 1.2 (including by using its reasonable best efforts to enforce its rights under the Debt Financing Commitment and the definitive agreements for the Debt Financing (including through litigation pursued in good faith) and to cause the Debt Financing Sources to provide the Debt Financing on or prior to the date on which the Closing is required to occur pursuant to Section 1.2), (ii) shall maintain in effect the Equity Financing and take or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Equity Financing on the terms and subject only conditions described in the Equity Financing Commitment and to consummate the Equity Financing on or prior to the date on which the Closing is required to occur pursuant to Section 1.2, and (iii) shall maintain in effect the Rollover Commitment Letter and cause the Rollover Investment, on the terms and conditions (including the “market flex” provisions) set forth described in the Debt Rollover Commitment Letter as promptly as practicable after Letter, to be consummated at the date hereofClosing. In addition, including using Parent will use its reasonable best efforts to (iy) maintain cause its Representatives to cooperate in effect the preparation of all documents and the making of all filings in connection with the Financing and the other transactions contemplated by the Financing Commitments, and in executing and delivering all documents and instruments related to the Financing Commitments), and (z) comply with its obligations under the Debt Financing Commitments. Notwithstanding anything in this Section 5.15(a), Section 5.15(b) or anywhere else in this Agreement to the contrary, in no event shall “reasonable best efforts” be deemed or be construed to require Parent or Merger Sub to, and neither Parent nor Merger Sub shall be required to, (1) seek equity financing from any source other than those counterparty to, or in any amount in excess of that contemplated by, the Equity Financing Commitments and the Rollover Commitment Letter, (ii2) negotiate and enter into definitive agreements with respect to pay any fees in the aggregate in excess of those contemplated by the Debt Financing on the terms and subject only to the conditions Commitment (including the any contingent fees described therein and any “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditionedprovisions contained therein), in each case, which shall not expand on the conditions or (3) agree to the funding conditionality or economic terms of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable that are less favorable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable than those contemplated by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, Commitment (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingincluding any “market flex” provisions contained therein).
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable reasonably necessary to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” flex provisions) set forth no less favorable to Parent than those described in the Financing Commitments, and shall not, without the consent of the Company, take any action or permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Financing Commitments if such action, amendment, modification or waiver would (x) reduce the aggregate amount of the Debt Commitment Letter Financing or (y) impose new or additional conditions or otherwise amend, modify or expand any conditions precedent to the receipt of the Debt Financing (or any portion thereof) in a manner that would reasonably be expected to (I) delay or prevent the Closing, (II) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing (or any portion thereof)) less likely to occur or (III) adversely impact the ability of Parent, Merger Sub or any of their respective Affiliates to enforce its rights against the other parties to the Debt Financing Commitments 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 replace, amend or modify the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as promptly of the date of this Agreement, in each case in accordance with the Debt Financing Commitments as practicable after of the date hereof, including using ). Each of Parent and Merger Sub shall use (a) reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Commitments (including by consummating the financing pursuant to the terms of the Equity Financing Commitment) until the Transactions are consummated (subject to Parent’s rights to amend, waive, supplement, modify or replace the Debt Financing Commitments in accordance herewith), (ii) satisfy (or obtain a waiver of) on a timely basis all conditions and covenants applicable to Parent, Merger Sub and any of their respective Affiliates party thereto in the Financing Commitments and otherwise comply with its obligations thereunder, (iii) 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” flex provisions) set forth no less favorable to Parent than those contemplated by the Debt Financing Commitments and (iv) upon satisfaction of the conditions contained in the Financing Commitments and satisfaction or waiver of all closing conditions contained in Sections 6.1 and 6.2, use its reasonable best efforts to consummate the Financing at Closing and (b) commercially reasonable efforts to enforce its rights under the Debt Financing Commitments. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice (which shall in no event be more than two Business Days from their knowledge thereof): (A) of any material breach or material default by any party to any Financing Commitment or definitive document related to the Financing; (B) of the receipt of any written notice or other written communication from any Person with respect to any: (1) breach, default, termination or repudiation by any party to any Financing Commitment or any definitive document related to the Financing or any provisions of any Financing Commitment or any definitive document related to the Financing or (2) material dispute or disagreement between or among any parties to any Financing Commitment or any definitive document related to the Financing (but excluding, for the avoidance of doubt, any ordinary course negotiations with respect to the terms of the Financing or any definitive agreement with respect thereto); and (C) if Parent, Merger Sub or any of their respective Affiliates party thereto will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. As soon as reasonably practicable, Parent or Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence; provided that in no event will Parent or Merger Sub be under any obligation to disclose any information that is subject to attorney-client or similar privilege. If any portion of the Financing becomes unavailable on the terms and conditions (including the flex provisions contained in the Redacted Fee Letter) contemplated in the Debt Commitment Letter Financing Commitments for any reason (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions than due to the funding failure of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available a condition to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing resulting from the failure of the condition set forth in Section 6.2(a)), Parent shall use its reasonable best efforts to arrange and obtain alternative financing from the same or alternative sources in an amount sufficient to consummate the Transactions on terms not materially less favorable from the Closing Datestandpoint of Parent, (iii) satisfy on a timely basis (or obtain Merger Sub, the waiver of) all conditions and covenants applicable to Affiliates of Parent and Merger Sub party thereto and the Company than those in the Debt Commitment Letter Financing Commitments (taking into account the flex provisions) as promptly as practicable following the occurrence of such event but no later than the Closing Date. Parent shall promptly provide a true, correct and the definitive agreements complete copy of each alternative financing commitment (together with a redacted copy of any related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (ivfee letter) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Blount International Inc)
Financing. (a) Each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries and the Guarantors to, use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after Financing Letters (or on other terms and conditions that are acceptable to parent, subject to the date hereofProhibited Financing Modifications), including using reasonable best efforts to (i) maintain (and cause each Guarantor to maintain) in effect and comply with the Debt Commitment LetterFinancing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing in a timely and diligent manner (subject to Parent’s or Merger Sub’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Letters in accordance herewith), (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 “market flex” provisions) and subject to those conditions set forth in the Debt Commitment Letter (or on other terms as consented and conditions that are acceptable to by the CompanyParent, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions subject to the funding of the Debt Prohibited Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateModifications), (iii) satisfy on a timely basis (taking into account the anticipated timing of the Closing and the Marketing Period) (or obtain the a waiver of) all conditions and covenants applicable to (and within control of) Parent and Merger Sub in the Debt Commitment Letter and Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements related thereto or, if necessary relating to the Financing (including by consummating the Equity Financing at or deemed advisable by Parent, seek immediately prior to the waiver of Closing on the terms and subject to the conditions applicable to Parent and Merger Sub contained set forth in such Debt the Equity Commitment Letter or such definitive agreements related theretoLetters), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the ClosingMerger, consummate the Debt Financing and cause the Financing Sources, each Guarantor and the other Persons committing to fund the Financing to fund the Financing at the Closing, and (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating Financing Letters. Notwithstanding anything to the Debt contrary in this Agreement, nothing contained in this Section 6.5 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing and from any source other than the Guarantors, or in any amount in excess of that contemplated by the Equity Commitment Letters, or (viy) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under incur or pay any fees to obtain a waiver of any term of the Debt Commitment Letter and or pay any material fees that are, in the definitive agreements relating to aggregate, in excess of those contemplated by the Equity Commitment Letters or the Debt FinancingCommitment Letter (including any market “flex” provisions contained therein).
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall Acquiror will use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper advisable or advisable desirable to arrange, obtain and consummate the Debt Financing (a) satisfy on the a timely basis all terms and subject only conditions applicable to the conditions (including the “market flex” provisions) Acquiror set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to that are within its control and (ib) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to contemplated by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements Letter. Acquiror will keep Seller apprised of material developments relating to the Debt Committed Financing and will give Seller prompt written notice of any material adverse change with respect to the Committed Financing, including prompt written notice (vii) otherwise comply of any breach or default (or any event or circumstance that, with Parent’s and Merger Sub’s covenants and other obligations under or without the Debt giving of notice or the lapse of time, would constitute such a breach or default) by any party to the Commitment Letter of which Acquiror becomes aware, (ii) if and when Acquiror becomes aware that any portion of the definitive agreements relating Committed Financing may not be available to consummate the funding of the transactions contemplated by this Agreement, (iii) of the receipt by Acquiror of any written notice or other written communication from any Person with respect to any actual or threatened breach, default, termination or repudiation by, or dispute with, any party to the Debt Commitment Letter that would reasonably be expected to result in the Committed Financing not being available or a material delay to the Closing Date, and (iv) of any expiration or termination of the Commitment Letter. Without limiting the foregoing, Acquiror will keep Seller informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Committed Financing. Acquiror will not replace, amend or waive the Commitment Letter without Seller’s prior written consent if such replacement, amendment or waiver reduces the aggregate or net amount of the Committed Financing; or amends the Committed Financing in a manner that would reasonably be expected to delay or prevent the Closing or make the funding of the Committed Financing less likely to occur.
Appears in 1 contract
Samples: Transaction Agreement (Equinix Inc)
Financing. (a) Each of Parent and Merger Sub The Buyer shall use its reasonable best efforts to take, take (or cause to be taken) all actions, all reasonable actions and to do, do (or cause to be done, ) all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the proceeds of the Debt Financing contemplated by the Debt Financing Commitments on the terms and subject only conditions described in the Debt Financing Commitments (including any flex provisions applicable thereto), including using reasonable best efforts to (i) negotiate definitive agreements with respect thereto on the terms and conditions (including the “market flex” provisions) contained therein, (ii) satisfy (or, if deemed advisable by the Buyer, seek a waiver of) on a timely basis all conditions applicable to the Buyer in the Debt Financing Commitments that are within its control and otherwise comply with its obligations thereunder and pay related fees and expenses on the Closing Date, (iii) maintain in effect the Debt Financing Commitments in accordance with the terms thereof (except for amendments and supplements not prohibited by this Section) until the transactions contemplated by this Agreement are consummated or this Agreement is terminated in accordance with its terms. The Buyer shall have the right from time to time to amend, supplement, amend and restate or modify the Debt Financing Commitments; provided, that any such amendment, supplement, amendment and restatement or other modification shall not, without the prior written consent of the Company (A) add new (or materially adversely modify any existing) conditions precedent to the Debt Financing as set forth in the Debt Commitment Letter Financing Commitments as promptly as practicable after in effect on the date hereof, including using reasonable best efforts to (iB) maintain in effect and comply with the Debt Commitment Letter, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available Commitments (including by changing the aggregate amount of fees to be funded at the Closing, impair the validity paid or original issue discount of the Debt Financing as set forth in the Debt Financing Commitments, except as contemplated by the “market flex” provisions in the Fee Letter) in a manner that would adversely impact in any material respect the ability of Buyer to consummate the Acquisition or prevent, impede that would otherwise be expected to materially delay or prevent the Acquisition or (C) otherwise be reasonably expected to (I) prevent or materially delay the consummation of the Acquisition and the other transactions contemplated by this Agreement, (II) make the funding of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub as set forth in the Debt Commitment Letter and Financing Commitments materially less likely to occur, or (III) materially adversely impact the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver ability of the conditions Buyer to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under against the Debt Commitment Letter and the definitive agreements relating other parties to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and Commitments or the definitive agreements relating with respect thereto. For the avoidance of doubt, but subject to the foregoing, the Buyer may amend, supplement, amend and restate, modify or replace the Debt Financing Commitments as in effect at the date hereof (x) to add or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement or (y) to increase the amount of indebtedness contemplated by the Debt Financing Commitments. For purposes of this Section, references to “Debt Financing” shall include the financing contemplated by the Debt Financing Commitments as permitted to be amended, supplemented or modified by this Section and references to “Debt Financing Commitments” shall include such documents as permitted to be amended or modified by this Section. For the avoidance of doubt and subject to the foregoing, the syndication of the Debt Financing to the extent permitted by and conducted in accordance with the Debt Financing Commitments as in effect on the date hereof shall not be deemed to violate the Buyer’s obligations under this Agreement. The Buyer shall (X) give the Company prompt notice of any material breach or default by any lender party to the Debt FinancingFinancing Commitments, in each case of which the Buyer has become aware, and any purported termination or repudiation by any lender party of the Debt Financing Commitments, in each case of which the Buyer has become aware and (Y) otherwise keep the Company reasonably informed of the status of the Buyer’s efforts to arrange the Debt Financing upon Company’s reasonable request.
Appears in 1 contract
Financing. (a) Each On the Closing Date, Parent will have sufficient cash, available lines of credit or other sources of immediately available funds to satisfy Parent’s cash payment obligations under this Agreement on the Closing Date, including payment of the Merger Consideration and any fees and expenses of, or payable by, Parent and or Merger Sub shall use reasonable best efforts in connection with the Merger or the Financing. Parent has delivered to takethe Company true, or cause complete and correct copies of the Finance Documents as of the date of this Agreement, redacted in a customary manner, pursuant to be taken, all reasonable actions and which the Financing Sources have agreed to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate lend the Debt Financing amounts set forth therein on the terms and subject only to the conditions set forth therein (including the “market flex” provisions) Financing”). Neither Parent nor any of its Affiliates has entered into any agreement, side letter or other arrangement relating to the Financing that would have the effect of reducing the amount of the Financing below the amount required, when taken together with all other sources of funding available for payment of the aggregate Merger Consideration, to pay the Merger Consideration on the Closing Date, or the effect of increasing the conditionality of the availability of such Financing, in each case other than as set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts Finance Documents and other than in a manner that Parent in good faith considers to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect be immaterial 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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding availability of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date. Parent has not received notice and is not aware that any of the respective commitments contained in the Finance Documents have been withdrawn or rescinded in any respect. The Finance Documents are in full force and effect and represent a valid, (iii) binding and enforceable obligation of Parent, subject to the Enforceability Exceptions. Parent has no reason to believe that it or any other party thereto will be unable to satisfy on a timely basis (or obtain any term of the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the Finance Documents. Assuming satisfaction or waiver of the conditions set forth in Section 9.01 and Section 9.02, Parent has no reason to Parent’s and Merger Sub’s obligations believe that (a) any of the Financing Conditions will not be satisfied or (b) the Financing will not be made available to consummate Parent on the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingClosing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ra Pharmaceuticals, Inc.)
Financing. (a) Each of The Company shall, to the extent the funds available under the Committed Debt Financing are necessary to effect the Parent and Merger Sub shall Refinancing, use its commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, cause inVentiv Group Holdings to consummate and obtain and consummate the Committed Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofLetter, including using reasonable best efforts causing inVentiv Group Holdings to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate negotiate, execute and enter into deliver definitive agreements with respect to thereto on terms and conditions contemplated by the Debt Financing on the Commitment Letter (as such terms and subject only to the conditions (including may be modified by the “market flex” provisions) set forth provisions in the Debt Commitment Fee Letter (or on other terms as consented to by which Parent and the Company, Company may both consent (such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub inVentiv Group Holdings in the Debt Commitment Letter and and, if applicable, the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek for the waiver of conditions applicable to Parent and Merger Sub contained in such Committed Debt Commitment Letter or such definitive agreements related theretoFinancing reasonably within inVentiv Group Holdings’s control, (iv) consummate the Committed Debt Financing contemplated by the Debt Commitment Letter at or, if Parent and the Company both consent (such consent not to be unreasonably withheld), prior to the Closing, and (v) apply the proceeds of the Committed Debt Financing directly or provide such proceeds to Parent to effect the Parent Refinancing. Subject to the terms and upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate set forth in the Debt Commitment Letter, the Company shall use its reasonable best efforts to cause inVentiv Group Holdings to cause the Financing at Sources to provide the ClosingCommitted Debt Financing on the Closing Date. If Parent and the Company both consent (such consent not to be unreasonably withheld), (v) enforce inVentiv Group Holdings may from time to time substitute other financing for all or any portion of the Committed Debt Financing from the same and/or alternative financing sources. inVentiv Group Holdings shall not amend, replace, supplement or otherwise modify, or waive any of its rights under the Debt Commitment Letter and without the definitive agreements relating prior written consent of Parent (such consent not to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations be unreasonably withheld). Any consent, approval, agreement or determination required or contemplated to be made by inVentiv Group Holdings under the Debt Commitment Letter (including the appointment of Additional Agents pursuant to Section 2 thereof, the original issue discount and margins and any fees to be paid in connection with the definitive agreements relating Committed Debt Financing that are not expressly set out in the Fee Letter (without giving effect to any “market flex” provisions)) shall be made in consultation with, and subject to the consent, approval or agreement of, Parent (in each case, not to be unreasonably withheld). The Company shall promptly furnish Parent with copies of any marketing materials, rating agency presentations, information memoranda or any other documents or communications prepared or received by the Company or any of its Affiliates in connection with the Committed Debt Financing, including any material drafts or final versions of definitive documentation with respect thereto (other than any internal documents prepared by the Company or any of its Subsidiaries and not distributed to lenders or their counsel or any other third party). In addition, the Company shall provide Parent and its outside counsel a reasonable opportunity to review and comment on, and rights of approval (which approval shall not be unreasonably withheld or delayed) with respect to, any material drafts of any documents related to the Committed Debt Financing prior to the dissemination of such documents to any third parties.
Appears in 1 contract
Samples: Agreement and Plan of Merger (INC Research Holdings, Inc.)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Financing described in the Financing Letters on the terms and subject only conditions described therein and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under the conditions Financing Letters that imposes new or additional conditions, in each case, that would reasonably be expected to (I) reduce the aggregate amount of the Debt Financing (including by changing the “market flex” provisions) amount of fees to be paid or original issue discount of the Debt Financing (except as set forth in any “flex” terms) unless the Equity Financing is increased by a corresponding amount), (II) delay or prevent the availability of the Financing or (III) make the funding of the Debt Financing (or satisfaction of the conditions to obtaining the Debt Financing) less likely to occur (it being understood and agreed that Parent and Merger Sub 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 promptly as practicable after of the date hereofof this Agreement), including using reasonable best efforts to (i) to maintain in effect and comply with the Debt Commitment LetterFinancing Letters until the consummation of the transactions contemplated hereby, (ii) to negotiate and enter into definitive agreements with respect to the Debt Financing Commitment Letter on the terms and subject only to the conditions (including the “market flex” flex provisions) set forth contained in the Debt Commitment Letter (or on terms no less favorable, in all material respects, to Parent and Merger Sub than the terms and conditions (including the flex provisions) 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 Parent or Merger Sub to funding in the Debt Commitment Letter at the Closing that are within its control and in the Equity Financing Commitment Letter and to consummate the Financing at or prior to the Closing, including using its reasonable best efforts (including through litigation pursued in good faith) to cause the lenders and the other terms as consented Persons committing to fund the Financing to fund the Financing at the Closing, (iv) to enforce its rights under the Financing Letters (including through litigation pursued in good faith) and (v) to comply with its obligations under the Financing Letters. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the Company prompt notice (x) of any breach or default by any party to any of the CompanyFinancing Letters and any definitive agreements with respect thereto of which Parent or Merger Sub becomes aware, if such consent not to be unreasonably withheldbreach or default would result in a material delay of, delayed or conditioned)in any way limit, the availability of the Financing, (y) of the receipt of (A) any written notice or (B) other written communication, in each casecase from any Debt Financing Source with respect to any (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing 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) material 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 shall not expand on the conditions to would make the funding of the Debt Financing at (or satisfaction of the Closingconditions to obtaining the Debt Financing) less likely to occur or materially delay the availability of the Debt Financing, reduce and (z) if for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the aggregate amount Financing on the terms, in the manner or from the sources contemplated by any of the Financing Letters or definitive document related to the Financing. As soon as reasonably practicable, but in any event within two Business Days after the date the Company delivers to Parent or Merger Sub a written request, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (x), (y) or (z) of the immediately preceding sentence. Upon the occurrence of any circumstance referred to in clause (x), (y)(A) or (z) of the second preceding sentence which would make any portion of the Debt Financing available unavailable, and such portion is reasonably required to fund the aggregate Per Share Merger Consideration and all fees, expenses and other amounts contemplated to be funded at paid by Parent, Merger Sub or the ClosingSurviving Corporation pursuant to this Agreement, impair Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain in replacement thereof alternative financing from alternative sources in an amount sufficient to consummate the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing transactions contemplated by this Agreement on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all terms and conditions and covenants applicable not materially less favorable to Parent and Merger Sub than the terms set forth in the Debt Commitment Letter and as promptly as reasonably practicable following the definitive agreements occurrence of such event. Notwithstanding anything to the contrary contained herein, in no event shall Parent or Merger Sub be required pursuant to this Agreement 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, 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 or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to and Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions shall not be required to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at until the Closingfinal day of the Marketing Period. Parent shall keep the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing. For purposes of this Agreement, (vreferences to “Debt Financing” shall include the alternate financing as permitted by this Section 6.14(a) enforce its rights under the and “Debt Commitment Letter and the definitive agreements relating Letters” shall include such documents related to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingalternative financing as permitted by this Section 6.14(a).
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only has delivered to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect Company a true and comply with complete copy of the Debt Commitment Letter, dated as of the date hereof (iithe “Commitment Letter”), made by UBS Loan Finance LLC and UBS Securities LLC (together, the “Lender”), and accepted by Parent, pursuant to which the Lender has committed to provide the debt financing (the “Financing”) negotiate to Parent that is necessary to consummate the transactions contemplated hereby. The Commitment Letter is, as of the date of this Agreement, in full force and enter into definitive agreements with effect in the form so delivered. The Commitment Letter has not been amended in any respect that could reasonably be expected to impair or delay the Debt Financing availability of the financing contemplated thereby on the terms and subject only to the Closing Date. There are no conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (precedent or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions contingencies related to the funding of the Debt Financing at full amount of the ClosingFinancing, reduce other than as set forth in or contemplated by the Commitment Letter (the “Disclosed Conditions”), and no Person (including, without limitation, the Lender) has any contractual right to impose (i) any condition precedent to such funding other than the Disclosed Conditions or (ii) any reduction to the aggregate amount available under the Commitment Letter on the Closing Date (or any term or condition which would have the effect of reducing the Debt Financing available to be funded at aggregate amount under the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing Commitment Letter on the Closing Date). Parent has fully paid all commitment fees required to be paid prior to the Closing Date in connection with the Commitment Letter. The aggregate proceeds contemplated by the Commitment Letter, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable together with other sources of capital available to Parent, will be sufficient when funded for Parent and the Surviving Corporation to pay the aggregate Merger Sub Consideration (including any applicable Merger Consideration in consideration of the Debt Commitment Letter conversion of the Company Preferred Stock and the definitive agreements related thereto orConvertible Debentures) and the Cash Out Amount, to refinance any outstanding indebtedness of the Company contemplated hereby to be so refinanced, to redeem the Company Preferred Stock (if necessary applicable), to consummate the Employee Preferred Stock Tender Offer (if applicable), and to pay all fees and expenses payable by Parent in connection with the Financing, the Merger or deemed advisable any other transactions contemplated by Parentthis Agreement. As of the date of this Agreement, seek the waiver of conditions applicable Parent does not have any reason to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver believe that any of the conditions to Parent’s and the Financing will not be satisfied or that the Financing will not be available to Merger Sub’s obligations Sub on the Closing Date. For avoidance of doubt, it shall not be a condition to consummate Closing for Parent or Merger Sub to obtain the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingor any alternative financing.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall, and shall cause their respective Subsidiaries and the Guarantors to, use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Letters, including using reasonable best efforts to (i) maintain (and cause each Guarantor to maintain) in effect and comply with the Debt Commitment LetterFinancing Letters and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing in a timely and diligent manner, (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 “market flex” provisions) and subject to the conditions set forth in the Debt Commitment Letter (or on other terms as consented that are acceptable to by the CompanyParent, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions subject to the funding of the Debt Prohibited Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateModifications), (iii) satisfy on a timely basis (or obtain the a waiver of) all conditions and covenants applicable to (and within control of) Parent and Merger Sub in the Debt Commitment Letter and Financing Letters and, to the extent entered into prior to the Closing, the definitive agreements related thereto or, if necessary relating to the Financing (including by consummating the Equity Financing at or deemed advisable by Parent, seek prior to the waiver of Closing on the terms and subject to the conditions applicable to Parent and Merger Sub contained set forth in such Debt the Equity Commitment Letter or such definitive agreements related theretoLetter), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the ClosingMerger, consummate the Debt Financing and cause the Financing Sources, each Guarantor and the other Persons committing to fund the Financing to fund the Financing at the Closing, and (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating Financing Letters. Notwithstanding anything to the Debt contrary in this Agreement, nothing contained in this Section 6.5 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing and from any source other than the counterparties to, or in any amount in excess of that contemplated by, the Equity Commitment Letter, or (viy) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under incur or pay any fees to obtain a waiver of any term of the Debt Commitment Letter and or pay any material fees that are, in the definitive agreements relating to aggregate, in excess of those contemplated by the Equity Commitment Letter or the Debt FinancingCommitment Letter (including any market “flex” provisions contained therein).
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall, and shall cause their respective Affiliates to, use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms (including the market “flex” provisions) and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Letters, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Letters and the definitive agreements relating to the Financing in a timely and diligent matter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms (including the market “flex” provisions) and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented acceptable to by the CompanyParent, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions subject to the funding of the Debt Prohibited Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateModifications), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter Financing Letters and the definitive agreements related thereto (including by consummating the Equity Financing at or prior to the Closing on the terms and subject to the conditions set forth in the Equity Funding Letter) (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the ClosingTransactions, consummate the Debt Financing and cause the lenders and the other Persons committing to fund the Financing to fund the Financing at the Closing, and (v) enforce its rights under the Financing Letters and the definitive agreements relating to the Financing. Parent and Merger Sub shall not, and shall cause its respective Affiliates to not, without the prior written consent of the Company, (x) 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 Equity Funding Letter (other than as expressly permitted under the Equity Funding Letter as in effect on the date hereof) or (y) 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 Debt Commitment Letter and Letter, any related fee letter or the definitive agreements relating to the Debt Financing if, in the case of this clause (y), such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of any portion of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under original issue discount contemplated by the Debt Commitment Letter and on the date of this Agreement unless the Debt Financing or Equity Financing is increased by a corresponding amount) such that the aggregate amount of the Financing would be below the amount required to pay the Required Amounts at the Closing, (B) impose new or additional conditions precedent to the availability of the Debt Financing or otherwise expand, amend or modify any of the conditions precedent to the Debt Financing in a manner that would reasonably be expected to delay or prevent the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date or (C) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights against other parties to the Debt Commitment Letter or the definitive agreements with respect to the Debt Financing (the foregoing clauses (A) through (C), collectively, the “Prohibited Financing Modifications”). Parent shall promptly deliver to the Company copies of any amendment, modification, supplement, consent or waiver to or under any Financing Letter or the definitive agreements relating to the Financing promptly upon execution thereof. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Section 6.15 shall require, and in no event shall the reasonable best efforts of Parent or Merger Sub be deemed or construed to require, either Parent or Merger Sub to (x) seek the Equity Financing from any source other than the counterparties to, or in any amount in excess of that contemplated by, the Equity Funding Letter, or (y) pay any fees in excess of those contemplated by the Equity Funding Letter or the Debt FinancingCommitment Letter (including any market “flex” provisions contained therein).
Appears in 1 contract
Financing. (a) Each of Parent shall, and Merger Sub shall cause its Subsidiaries and use its reasonable best efforts to cause its and their respective Representatives to, use its and their reasonable best efforts to take, or cause to be taken, all reasonable actions actions, and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisionsterms contained in the Debt Commitment Letter as in effect on the date hereof) expressly set forth in the Debt Commitment Letter as promptly as practicable after the date hereofLetter, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterLetter in accordance with the terms and subject to the conditions thereof until the Transactions are consummated or this Agreement is terminated in accordance with Article VII, (ii) satisfy or obtain a waiver on a timely basis of all conditions applicable to Parent and its Affiliates set forth in the Debt Commitment Letter that are within its or its Affiliates’ control, (iii) 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” provisionsterms) set forth in the Debt Commitment Letter Letter, (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of iv) consummate the Debt Financing on or prior to the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and (vi) comply with its obligations under the definitive Debt Commitment Letter. Without the prior written consent of the Company (such consent not to be unreasonably withheld, denied, delayed or conditioned), Parent shall not permit any amendment, supplement or modification to be made to, or any waiver of any provision or remedy under, or any replacement of the Debt Commitment Letter if such amendment, supplement, replacement, modification, waiver, or replacement would: (x) reduce (or have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Debt Financing) such that the aggregate amount of the Debt Financing, together with cash on hand of Parent and its Subsidiaries, and other available sources that would be available on the Closing Date would not be sufficient to pay the Required Amount; (y) amend the conditions precedent to the Debt Financing or impose any new or additional conditions or contingencies to the Debt Commitment Letter in a manner that would reasonably be expected to (1) materially impair, delay or prevent the Closing or (2) make materially less likely to occur the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing; or (z) materially adversely affect the ability of Parent to enforce its rights against the other parties to the Debt Commitment Letter or other agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under as provided by this Section 5.14. Notwithstanding the foregoing, any amendment, supplement or modification to effectuate any “market flex” terms contained in the Debt Commitment Letter or to add any additional agents or other financial institutions thereto as provided for therein shall be permitted and shall not require written consent of the definitive agreements relating Company. Parent shall promptly deliver to the Company copies of any amendment, modification, supplement or waiver to or under, or any replacement of, any Debt FinancingCommitment Letter.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Owens & Minor Inc/Va/)
Financing. (a) Each of Parent and Merger Sub The Purchaser Group shall use its reasonable best efforts to take, or cause to be taken, all reasonable appropriate actions and to do, or cause to be done, all reasonable things necessary, proper or advisable under applicable Law to arrangearrange and obtain the proceeds of, obtain and consummate the Debt Financing as promptly as reasonably practicable on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after and the date hereofFee Letter (including, if required by the Lenders pursuant to the Fee Letter, the "flex" provisions), including using reasonable best efforts to to, (i) until the execution of the Financing Definitive Agreements, maintain in effect and comply with the Debt Commitment Letter, ; (ii) negotiate and enter into definitive agreements (any such agreements, the "Financing Definitive Agreements") with respect to the Debt Financing on consistent with the terms and subject only to conditions contained in the conditions Debt Commitment Letter and the Fee Letter (or on such other terms as the Purchaser Group and the its debt financing sources (including the “market flex” provisionsLenders in the Debt Financing and the underwriters, initial purchasers and prospective purchasers in any Bond Financing) shall agree so long as the terms of the Financing Definitive Agreements (1) do not reduce the aggregate amount of the Debt Financing set forth in the Debt Commitment Letter (or on other terms as consented except to by the Company, such consent not to be unreasonably withheld, delayed or conditionedextent of an increase in the aggregate amount of a Bond Financing), in each case, which shall (2) do not expand on the contain additional or materially modified conditions or other contingencies to the funding of the Debt Financing at than those contained in the Closing, reduce Debt Commitment Letter (and in no event shall any such modified conditions or contingencies increase the aggregate amount conditionality of the Debt Financing available Financing) and (3) are otherwise not reasonably likely to be funded at impair or delay the Closing, impair Closing or the validity of date on which the Debt Financing or preventwould otherwise be obtained) and deliver to the Sellers a complete, impede or delay the consummation of the Debt Financing on the Closing Date, correct and executed copy thereof as promptly as practicable after execution thereof; (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants to the Debt Financing applicable to Parent and Merger Sub within the control of the Purchaser Group set forth in the Debt Commitment Letter or the Financing Definitive Agreements, as applicable, and comply in all respects with its obligations under the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, Letter; and (iv) upon the satisfaction or waiver of the all conditions to Parent’s the Closing hereunder and Merger Sub’s obligations the satisfaction of all conditions to consummate obtaining the ClosingDebt Financing, consummate the Debt Financing at the Closing; provided, however, that the foregoing shall not require the Purchaser Group to initiate, file or maintain any Actions against any of its debt financing sources (vincluding the Lenders in the Debt Financing and the underwriters, initial purchasers and prospective purchasers in any Bond Financing) enforce its rights or their respective Representatives in the event of a breach by any such Person of an obligation under the Debt Commitment Letter and the definitive agreements relating to or otherwise in connection with the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt or any Bond Financing.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and action necessary to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the proceeds of the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofand Fee Letter, including using reasonable best efforts to (i) maintain in effect the Commitment Letter and comply Fee Letter in accordance with their terms until the funding of the Debt Commitment LetterFinancing at or prior to the Offer Closing, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (the “Definitive Agreements”) on the terms and subject only to conditions not less favorable, in the conditions aggregate, than those contained in the Commitment Letter and the Fee Letter (including including, as necessary, the “market flex” provisions) set forth provisions contained in the Debt Fee Letter) and (iii) satisfy (or, if deemed advisable by Parent, obtain the waiver of) on a timely basis (taking into account the expected timing of the Marketing Period) all conditions in the Commitment Letter, the Fee Letter and the Definitive Agreements applicable to and within the control of Purchaser (or on other terms as consented excluding any condition where the failure to by be so satisfied is a result of the Company’s breach of this Agreement) and comply with its obligations thereunder. In the event that all conditions contained in the Commitment Letter, such the Fee Letter and the Definitive Agreements have been satisfied and Parent is required to consummate the Offer Closing, Parent shall use reasonable best efforts to cause each Lender to fund its respective committed portion of the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses. Parent shall not, without the prior written consent of the Company (which shall not to be unreasonably withheld, delayed conditioned or conditioneddelayed), in each casepermit any amendment or modification to, which or any waiver of any provision (including any remedy) under, or voluntarily replace (it being understood that any Alternative Debt Financing shall not expand on be deemed a voluntary replacement for purposes of this sentence), the conditions to the funding of the Debt Financing at the ClosingCommitment Letter or Fee Letter if such amendment, reduce modification, or waiver or voluntary replacement (w) reduces the aggregate amount of the Debt Financing available intended to be funded at in connection with the Offer Closing and/or Merger Closing, impair the validity of the Debt Financing (x) adds new (or prevent, impede or delay adversely modifies any existing) conditions to the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable as compared to Parent and Merger Sub those in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek Fee Letter as in effect on the waiver date of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretothis Agreement, (ivy) upon adversely affects the satisfaction or waiver ability of the conditions Parent to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under against other parties to the Debt Commitment Letter and the definitive agreements relating Fee Letter as so amended, replaced, supplemented or otherwise modified, relative to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and ability of Parent to enforce its rights against such other obligations under parties to the Debt Commitment Letter and the definitive agreements relating Fee Letter as in effect on the date hereof, or (z) would otherwise reasonably be expected to prevent, impede or materially delay the consummation of the Merger and the other transactions contemplated by this Agreement or (ii) result in the termination of the Debt Financing or Commitment Letter unless such Commitment Letter is replaced with an Alternative Debt Financing; provided, that for the avoidance of doubt no consent from the Company shall be required for: (A) any amendment, replacement, supplement or modification of the Commitment Letter and the Fee Letter that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Commitment Letter and the Fee Letter as of the date of this Agreement (including in replacement of a Lender), (B) implementation or exercise of any “flex” provisions provided in the Fee Letter as in effect as of the date hereof or (C) any amendment, replacement, supplement or modification to the Debt FinancingCommitment Letter or the Fee Letter so long as such action would not be prohibited by the foregoing clauses (w)-(z).
Appears in 1 contract
Financing. (a) Each Subject to the other terms and conditions of Parent this Agreement, Purchaser shall use, and Merger Sub shall use cause the Subsidiaries of Purchaser to use, their respective commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper reasonably necessary or advisable to arrange, obtain arrange and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing, including using commercially reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) and satisfy on a timely basis (or obtain taking into account the waiver ofexpected timing of the Marketing Period) all conditions and covenants applicable to Parent and Merger Sub the Financing in the Debt Commitment Letter and the definitive agreements related thereto orto be entered into pursuant thereto, if necessary or deemed advisable by Parent, seek to the waiver of conditions extent applicable to Parent or within the control of Purchaser or its Subsidiaries (other than any condition where the failure to be so satisfied is a direct result of the Company Group’s failure to provide the cooperation described in Section 4.1(i)), (ii) negotiate, execute and Merger Sub deliver definitive agreements with respect to such Financing on the terms contained in such the Debt Commitment Letter or otherwise no less favorable to Purchaser and Merger Sub than the terms and conditions (including the “flex” provisions) contemplated by the Debt Commitment Letter and the Fee Letter, (iii) comply with its obligations under the Debt Commitment Letter, including to satisfy on a timely basis all conditions precedent to funding in the Debt Commitment Letter and such definitive agreements related theretothereto and to consummate the Financing at or prior to the Closing, (iv) upon in the satisfaction or waiver of event that the conditions to Parent’s Closing under this Agreement and the conditions to the availability of the Financing under the Debt Commitment Letter are satisfied, obtain a sufficient amount of the Financing to enable Purchaser and Merger Sub’s obligations Sub to consummate the Closingtransactions contemplated by this Agreement, consummate the Debt Financing at the Closing, and (v) if appropriate and practical under the circumstances and available sources of cash are not otherwise available to consummate the transactions contemplated herein, enforce its rights under the Debt Commitment Letter and Fee Letter. Purchaser and Merger Sub shall keep Sellers’ Representative and the Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Financing and provide the Company with copies of all executed definitive agreements relating related to the Financing. Subject to the terms and upon satisfaction of the conditions set forth in the Debt Commitment Letter, Purchaser and Merger Sub shall use its commercially reasonable efforts to cause the Debt Financing Sources to provide the Financing on the Closing Date. In the event any portion of the Financing becomes unavailable on the terms and conditions (viincluding any “flex” provisions) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under contemplated in the Debt Commitment Letter and the Fee Letter, and such portion is reasonably required to consummate the transactions contemplated by this Agreement, including without limitation, to pay the Final Merger Consideration, the Repaid Indebtedness, the Final Sellers’ Transaction Expenses and all other fees and expenses and other payment obligations required to be paid by Purchaser and Merger Sub in connection with this Agreement, Purchaser and Merger Sub shall (A) promptly notify Sellers’ Representative and the Company and (B) use their commercially reasonable efforts to arrange to obtain Alternative Financing in an amount at least equal to the amount of such portion, upon terms and conditions not materially less favorable to Purchaser and its Subsidiaries than the terms and conditions set forth in the Debt Commitment Letter, as promptly as practicable following the occurrence of such event. Purchaser and Merger Sub shall promptly (and in any event within two (2) Business Days) notify Sellers’ Representative and the Company in writing (I) of any breach or default by Purchaser or Merger Sub under the Debt Commitment Letter or any definitive agreements relating related thereto or, to the knowledge of the Purchaser or Merger Sub, any other party to the Debt Commitment Letter or any definitive agreements related thereto, (II) if for any reason either Purchaser or Merger Sub at any time believes it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or any definitive agreements related thereto and (III) of the receipt by either Purchaser or Merger Sub or any of their respective Representatives of any written notice or other written communication from any Debt Financing Source or other Person with respect to (x) any actual or potential breach (or threatened breach), default, termination or repudiation by any party to the Debt Commitment Letter, any definitive agreement related thereto or any provision of the financing contemplated pursuant to the Debt Commitment Letter or any definitive agreement related thereto (including any proposal by any lender named in the Debt Commitment Letter to withdraw, terminate, reduce the amount of financing or delay the timing of financing contemplated by the Debt Commitment Letter), including any Alternative Financing or (y) any material dispute or disagreement between or among any parties to the Debt Commitment Letter or any definitive agreement related thereto that Purchaser or Merger Sub believes in good faith could result in an inability to receive or a delay in Purchaser’s or Merger Sub’s receipt of the proceeds of the Financing., and in any such case, Purchaser and Merger Sub shall provide any information relating to any of the foregoing circumstances as soon as reasonably practicable (and in any event within two (2) Business Days) following the Company’s reasonable request therefor; provided, that in no event shall Purchaser or Merger Sub be required to disclose any information that is subject to attorney-client or similar privilege if Purchaser or Merger Sub has used commercially reasonable efforts to disclose such information in a way that would not waive such privilege. In the event that Purchaser or Merger Sub does not provide access or information in reliance on the proviso to the immediately preceding sentence, Purchaser or Merger Sub shall provide written notice to the Company that such access or information is being withheld and Purchaser and Merger Sub shall use commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not violate the applicable obligation or risk waiver of such privilege. Prior to the Closing, neither Purchaser nor Merger Sub shall, without the Company’s prior written consent, consent to (1) any amendment or modification to, or any waiver of any provision or remedy under, the Debt Commitment Letter or the Fee Letter if such amendment, modification or waiver (a) imposes new or additional conditions, or otherwise expands or modifies any of the conditions, to Purchaser’s or Merger Sub’s receipt of the Financing, (b)
Appears in 1 contract
Samples: Agreement and Plan of Merger (Prestige Brands Holdings, Inc.)
Financing. (a) Each Parent, HH Finance and Sub shall, and will cause each of Parent and Merger Sub shall their Subsidiaries to, use their reasonable best efforts to take, or cause to be taken, arrange and do all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper necessary or advisable to arrangeobtain the Financing as soon as reasonably practicable and, obtain in any event, not later than the date and consummate time the Debt Financing Closing is required to be effected in accordance with Section 1.02, on the terms and subject only conditions (including, to the conditions (including extent applicable, the “market flex” provisions) set forth described in the Financing Commitments (for purposes of this Section 5.15, the Financing Commitments and the Debt Commitment Letter as promptly as practicable after the date hereofshall include any Fee Letter), including using reasonable best efforts to (i) maintain either (A) amend and restate HH Existing Credit Agreement referenced in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect Letter to the Debt Financing on incorporate the terms and subject only to conditions of the Debt Commitment Letter and the Credit Agreement Financing Documents (as such terms and conditions may be modified or adjusted in a manner that would not have a Funds Certainty Effect) and any further amendments or modifications that would not have a Funds Certainty Effect or (including B) enter into the “market flex” provisions) set forth Additional Facility Notice under and as defined in the Debt Commitment Letter (or on other terms as consented to by collectively, the Company, such consent not to be unreasonably withheld, delayed or conditioneddocumentation in clauses (A) and (B), in each case, which shall not expand on the conditions to the funding of the “Definitive Debt Financing Agreements”), (ii) satisfy (or, at the Closingoption of Parent and/or Sub, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) on a timely basis all material terms, conditions and covenants covenants, including with respect to the payment of any commitment, engagement or placement fees, applicable to Parent and Merger or Sub in the Financing Commitments and the Definitive Debt Financing Agreements that are in Parent’s, HH Finance’s and Sub’s control to satisfy (for the avoidance of doubt, any term, condition and covenant that would have or reasonably be expected to have a Funds Certainty Effect is material), (iii) consummate (and cause the Financing Sources to consummate) the Financing at or prior to the Effective Time, in each case to the extent required to ensure that the aggregate Financing and cash on hand are sufficient to fund the Financing Uses, (iv) enforce their rights under the Financing Commitments and the Definitive Debt Financing Agreements and (v) other than as may be terminated, replaced, amended and/or restated as provided below in Section 5.15(c), maintain in effect the Debt Commitment Letter and/or the Definitive Debt Financing Agreements, as applicable until the Transactions are consummated (or until this Agreement otherwise terminates). Neither Parent, HH Finance, Sub nor any of their Subsidiaries party thereto shall agree to any amendments or modifications to, or grant any waivers of, any condition or other provision under the Financing Commitments or the definitive agreements relating to the Financing (including for the avoidance of doubt, the Credit Agreement Financing Documents) without the prior written consent of the Company to the extent that such amendments, modification or waivers would have or would reasonably be expected to have a Funds Certainty Effect; provided, the foregoing shall not restrict any amendment of the Debt Commitment Letter, the Credit Agreement Financing Documents or the Definitive Debt Financing Agreements to (A) add lenders, lead arrangers, bookrunners, syndication agents or any person with similar roles or titles who had not executed the Debt Commitment Letter as of the date hereof if the addition of such additional parties, individually or in the aggregate, would not have a Funds Certainty Effect, (B) any amendment, modification, or amendment and restatement of HH Existing Credit Agreement to incorporate the terms and conditions of the Debt Commitment Letter and the definitive agreements related thereto or, if necessary Credit Agreement Financing Documents (as such terms and conditions may be modified or deemed advisable by Parent, seek adjusted in a manner that would not have a Funds Certainty Effect) and any other terms and conditions (and any termination of the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter if such commitment has been replaced thereby) so long as any such amendment, modification or such definitive agreements related theretoamendment and restatement, individually or in the aggregate, would not have, or would not reasonably be expected to have, a Funds Certainty Effect or (ivC) upon in accordance with Section 5.15(c) below. Parent, HH Finance and Sub shall use their reasonable best efforts to maintain in effect the satisfaction Financing Commitments, the Credit Agreement Financing Documents and, once executed, the Definitive Debt Financing Agreements until the Transactions are consummated (provided that the foregoing shall not limit the Parent’s, HH Finance’s or waiver Sub’s right to amend, restate, modify or waive the terms of the conditions to Parent’s Debt Commitment Letter, the Credit Agreement Financing Documents and Merger Sub’s obligations to consummate the Closing, consummate the Definitive Debt Financing at Agreements in accordance with the Closingimmediately preceding sentence and/or Section 5.15(c)). Prior to the Effective Time, (v) enforce its rights none of Parent, HH Finance nor Sub shall release or consent to the termination of the obligations of the Lenders under the Debt Commitment Letter and or the definitive agreements relating Definitive Debt Financing Agreements in each case to the Debt extent that results or would be reasonably expected to result in the aggregate Financing and available at Closing being insufficient to fund the Financing Uses and, in each case, subject to clause (vic) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under below, without the Debt Commitment Letter and prior written consent of the definitive agreements relating to the Debt FinancingCompany.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub Prior to the Closing, each Trebia Party shall use its commercially reasonable best efforts to take, or cause to be taken, and shall use its commercially reasonable efforts to cause its Representatives to use their commercially reasonable efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things reasonably necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofLetter, including using commercially reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the terms and conditions (including the “market flex” provisions) set forth in contemplated by the Debt Commitment Letter (as such terms may be modified or on other terms as consented to by adjusted in accordance with the Company, such consent not to be unreasonably withheld, delayed or conditioned“flex” provisions contained in the Debt Fee Letter), or in each case, on other terms acceptable to Trebia which shall would not expand on the conditions to the funding of the Debt Financing at the Closing, (A) reduce the aggregate amount of the Debt Financing to an amount that is, when taken together with the Cannae Backstop Amount, available cash, cash equivalents and marketable securities of S1 Holdco and its Subsidiaries and Protected and its Subsidiaries and any increase (including amounts otherwise available under the Debt Financing) in the Debt Financing sufficient for Trebia to pay the amounts required to be funded paid by Trebia pursuant to this Agreement on the Closing Date and all related fees and expenses at the Closing, impair Closing or (B) impose new or additional conditions precedent to the validity receipt of the Debt Financing that would reasonably be expected to materially delay or prevent, impede or delay prevent the consummation of the Debt Financing on the Closing DateClosing), (iii) satisfy on a timely basis (or obtain the a waiver of) all conditions and covenants applicable to Parent and Merger Sub any Trebia Party that are within its control in order for the Trebia Parties to obtain the Debt Financing as set forth in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (viiv) otherwise comply with Parent’s and Merger Sub’s covenants and enforce their rights under the Debt Commitment Letter. If all conditions to the Debt Commitment Letter have been satisfied or are capable of being satisfied (other obligations than conditions that, by their nature, are to be satisfied at the Closing), each Trebia Party shall use its commercially reasonable efforts to cause the Debt Financing Sources, under the Debt Commitment Letter and to fund on the definitive agreements relating to Closing Date the Debt FinancingFinancing required to pay the amounts required to be paid by Trebia pursuant to this Agreement on the Closing Date.
Appears in 1 contract
Samples: Business Combination Agreement (Trebia Acquisition Corp.)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” flex provisions) set forth described in the Financing Commitments (or on terms no less favorable to Parent and Sub with respect to the conditionality and amount (including the amount of fees to be paid or original issue discount) thereof), including using commercially reasonable efforts to seek to enforce its rights under the Debt Commitment Letter in the event of a material breach thereof by the Debt Financing provider(s) thereunder, and shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under (x) the Equity Commitment Letter (other than to increase the amount of the Equity Financing) or (y) the Debt Commitment Letter (except in compliance with the flex provisions of the Redacted Fee Letter in effect as of the date hereof), if such amendment, modification or waiver reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount), amends the conditions precedent to the Debt Financing in a manner that would reasonably be expected to delay or prevent the Offer Closing Date or the Merger Closing Date or make the funding of the Debt Financing less likely to occur, adversely impacts the ability of any Party hereto to enforce or cause the enforcement of the rights of Parent or Sub under any of the Debt Commitment Letter or the definitive agreements relating thereto or imposes additional material obligations on the Company, the Company Subsidiaries or Affiliates of the Company prior to the earlier of the Offer Closing Date and the Effective Time; provided, however, that Parent and Sub may amend or restate the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Commitment Letter as promptly as practicable after of the date hereof. Parent shall promptly deliver to the Company copies of any such amendment, including using modification or waiver. Each of Parent and Sub shall use its reasonable best efforts to (i) to maintain in effect the Financing Commitments and comply with the Debt Commitment Letter, (ii) to negotiate and enter into definitive agreements with respect to the Debt Financing Commitment Letter on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on other terms as consented no less favorable to by the Company, such consent not to be unreasonably withheld, delayed or conditionedParent and Sub), in each case, which shall not expand on the conditions (ii) to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained it in such Debt Commitment Letter or such definitive agreements related theretothat are within its control, (iii) upon satisfaction of such conditions, to consummate the Financing at or prior to the Offer Closing (with respect to amounts required to consummate the Offer, if the Offer Termination has not occurred) and the Merger Closing (with respect to amounts required to consummate the Merger and make other payments due at such time in accordance with the terms hereof) and (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other its obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingFinancing Commitments.
Appears in 1 contract
Samples: Agreement and Plan of Merger (California Pizza Kitchen, Inc.)
Financing. (a) Each of Parent Parent, Buyer and Merger Finance Sub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things reasonably necessary, proper or advisable to arrange, obtain and consummate the Debt Financing as promptly as practicable on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Financing Commitment Letter (provided that Parent, Buyer and Finance Sub may replace or amend the Debt Financing Commitment to add lenders, lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Financing Commitment as promptly as practicable after of the date hereof, or otherwise so long as such replacement or amendment would not adversely impact or delay in any material respect the ability of Parent, Buyer or Finance Sub to consummate the transactions contemplated hereby or the likelihood of the consummation of the transactions contemplated hereby), including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Commitment, subject to the foregoing replacement and amendment rights, (ii) negotiate satisfy on a timely basis all conditions applicable to Parent, Buyer and Finance Sub to obtaining the Debt Financing set forth in the Debt Financing Commitment that are within their control (including by consummating the financing pursuant to the terms of the Equity Financing Commitments and by assisting in the syndication or marketing of the financing contemplated by the Debt Financing Commitment), and (b) enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to conditions contemplated by the conditions (including the “market flex” provisions) set forth in the Debt Financing Commitment Letter (or on other terms as consented reasonably acceptable to by Parent that would not adversely impact in any material respect the Companyability of Parent, such consent Buyer or Finance Sub to consummate the transactions contemplated hereby. In addition, but not in limitation to be unreasonably withheldthe foregoing, delayed or conditioned), in each case, which shall not expand on the conditions to if the funding of the Senior Notes or the Senior Subordinated Notes as contemplated by the Debt Financing at Commitment has not been obtained prior to the Closinglast day of the Marketing Period, reduce Parent, Buyer and Finance Sub shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain the aggregate amount Debt Financing in the form of the Bridge Loans and the Senior Facilities as contemplated by the Debt Financing Commitments. Without limiting Parent’s, Buyer’s and Finance Sub’s obligations under this Section 7.14, if any portion of the Debt Financing available to be funded at becomes unavailable on the Closing, impair the validity of terms and conditions contemplated in the Debt Financing or preventCommitment, impede or delay the consummation of the Debt Financing Parent, Buyer and Finance Sub shall use their reasonable best efforts to arrange to obtain alternative financing from alternative sources on the Closing Dateterms not materially less beneficial to Parent, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions Buyer and covenants applicable to Parent and Merger Finance Sub in the Debt Commitment Letter and the definitive agreements related thereto an amount at least equal to such portion or, if necessary or deemed advisable by Parentwhen combined with the Equity Commitments and cash on hand at the Company, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations sufficient to consummate the Closing, consummate transactions contemplated by this Agreement as promptly as practicable following the Debt Financing at occurrence of such event but in no event later than the Closing, (v) enforce its rights under Termination Date. Parent shall give the Debt Commitment Letter and the definitive agreements relating Company prompt notice of any material breach by any party to the Debt Financing and (vi) otherwise comply with Commitments of which Parent’s and Merger Sub’s covenants and other obligations under , Buyer or Finance Sub becomes aware, or any termination of the Debt Commitment Letter and Financing Commitments. Parent shall keep the definitive agreements relating Company informed on a reasonably current basis of the status of its efforts to arrange the Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Pinnacle Foods Finance LLC)
Financing. (a) Each Subject to the terms and conditions of this Agreement, Parent and Merger Sub shall use its reasonable best efforts to take, obtain the Financing on a timely basis including (to the extent the proceeds of the term loans thereunder are needed to consummate the Transactions) pursuant to the New Term Loan Facility and if all conditions to funding thereunder have been satisfied (it being understood and agreed that Parent shall use its reasonable best efforts to satisfy (or cause to be takensatisfied) all such conditions on a timely basis), all reasonable actions and causing the lenders under the New Term Loan Facility to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on or prior to the Closing Date on the terms and subject only conditions described in the New Term Loan Facility (it being 56 understood that it is not a condition to Closing under this Agreement for Parent to obtain all or any portion of the Financing). (b) Parent will keep the Company reasonably informed of the status of its efforts to arrange the Financing and to satisfy the conditions thereof, including (i) giving the Company prompt notice upon having Knowledge of any breach by any party to the conditions New Term Loan Facility or any termination of the New Term Loan Facility and (including ii) upon the “market flex” provisions) Company’s reasonable request, advising and updating the Company, in a reasonable level of detail, with respect to the status of the Financing and the anticipated closing of the Financing (which shall be at or prior to the Closing). Except as set forth in this Section 6.04, Parent shall not, without the Debt Commitment Letter prior written consent of the Company (which consent shall not be unreasonably withheld, conditioned or delayed), voluntarily reduce the committed principal amount of the New Term Loan Facility or amend, modify, supplement or waive any of the conditions or contingencies to funding contained in the New Term Loan Facility or any other provision of, or remedies under, the New Term Loan Facility, in each case to the extent such amendment, modification, supplement or waiver would reasonably be expected to have the effect of directly or indirectly (A) impairing the enforceability of the New Term Loan Facility or reducing the aggregate amount of debt financing under the New Term Loan Facility (except (x) as promptly required thereby or (y) concurrently with the entry into alternative debt financing arrangements described in clause (x) of the proviso at the end of this clause (b), in equal amounts to, and having conditions to funding that are no less favorable to Parent than the New Term Loan Facility), (B) adversely affecting in any material respect the ability of Parent to timely consummate the Transactions, (C) amending, modifying, supplementing or waiving the conditions or contingencies to the Financing in a manner materially adverse to the Company or (D) materially delaying or impeding the Closing; provided that notwithstanding any other provision of this Agreement, Parent shall be entitled from time to time to (x) substitute other debt financing (in equal amounts to, and having conditions to funding that are no less favorable to Parent than the New Term Loan Facility) for all or any portion of the Financing from the same or alternative financing sources (including, for the avoidance of doubt, one or more issuances of debt securities; provided, that such debt securities shall not be convertible into, exchangeable for or otherwise linked to, any equity securities), and (y) amend, restate, replace, supplement or otherwise modify the New Term Loan Facility for the purpose of adding agents, co-agents, lenders, arrangers, bookrunners or other persons that have not executed the New Term Loan Facility as practicable after of the date hereofof this Agreement, in each case, subject to subclauses (A), (B), (C) and (D) above. (c) Upon any such amendment, restatement, replacement, supplement or modification, in accordance with the terms of this Section 6.04, the term “New Term Loan Facility” shall mean for all purposes of this Agreement the New Term Loan Facility as so amended, restated, replaced, supplemented or modified. Parent shall promptly make available to the Company true and complete copies of any such amendment, restatement, replacement, supplement or modification (with only the fee amounts and certain other provisions redacted, which redacted provisions shall not affect the principal amount or availability of the Financing). (d) Upon the request of Parent, the Company shall provide, and shall cause the Company Subsidiaries to provide and shall use their respective reasonable best efforts to cause its and their Representatives to provide, all cooperation reasonably requested by Parent in connection with the arrangement of the Financing in connection with the Transactions, 57 including: (i) participation of the Company’s senior officers in a reasonable number of meetings (including with prospective agents, co-agents, lenders, arrangers, bookrunners, underwriters and other financing sources), drafting sessions, due diligence sessions and rating agency presentations, in each case, to the extent reasonable and customary; (ii) making available to Parent and its underwriters and financing sources any historical financial statements of the Company and the Company Subsidiaries required to be included by Regulation S-X and Regulation S-K under the Securities Act in a registered offering of unsecured debt securities by Parent and any other information (financial or otherwise) regarding the Company that is reasonably available and reasonably necessary for Parent to prepare pro forma financial statements and projections or otherwise as is customarily provided in connection with any financing comparable to the Financing, as well as business and other financial information of the type required by Regulation S-X and Regulation S-K under the Securities Act in a registered offering of unsecured debt securities by Parent; (iii) assisting Parent and its underwriters and financing sources in the preparation of (A) a customary bank information memorandum (as well as a public-side version thereof) for the Financing, (B) materials for rating agency presentations and (C) prospectuses, offering memoranda and private placement memoranda, including using its reasonable best efforts to obtain any consents of accountants for use of their reports in any of the foregoing; provided that Parent shall be primarily responsible for the preparation of any such documentation; (iv) assisting Parent with the preparation of any definitive documents related to the Financing or any offering(s) of debt securities in lieu of the Financing (including any schedules thereto) as may be reasonably requested by Parent; provided that Parent shall be primarily responsible for the preparation of any such documentation; (v) executing and delivering (or using reasonable best efforts to obtain) customary certificates, accountants’ comfort letters (including customary “negative assurance” comfort), consents, legal opinions and negative assurance letters in connection with the Financing; (vi) affording Parent’s underwriters and financing sources with reasonable and customary access (on a reasonable and limited number of occasions), upon reasonable advance notice, during normal business hours to all of its properties, books, Contracts, Tax Returns, commitments, personnel and records; (vii) providing Parent’s underwriters and financing sources with all documentation and other information required by regulatory authorities and as reasonably requested by Parent with respect to the Company in connection with applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT ACT; and (viii) consenting to the reasonable use of the Company’s trademarks, service marks or logos in connection with the Financing prior to the Closing Date (subject to advance review of and consultation with respect of such use and so long as such marks or logos are used in a manner that is reasonable and customary for such purposes and that is not intended or reasonably likely to harm or disparage the Company or any Company Subsidiary or the reputation or goodwill of the Company or any Company Subsidiary or any of their respective products, services, offerings or intellectual property rights); provided that the Company shall not be required to pay any commitment or other similar fee or incur any other liability in connection with the Financing; provided, further, that the effectiveness of any documentation executed by the Company with respect thereto shall be subject to the consummation of the Merger and nothing in this Section 6.04 shall require any cooperation to the extent it would interfere unreasonably with the business or operations of the Company or the Company Subsidiaries. Parent acknowledges and agrees that none of the Company or any Company Subsidiary or any of their respective Representatives shall incur any liability or have any obligations to any person under or in connection with the Financing prior to the Closing. 58 (e) Notwithstanding anything herein to the contrary, the cooperation set forth in Section 6.04(d) shall not be required to the extent such cooperation (i) maintain in effect and comply with unreasonably disrupts the Debt Commitment Letternormal operations of the Company or any Company Subsidiary, (ii) negotiate and enter into definitive agreements would cause any breach of this Agreement or cause any condition of this Agreement to not be satisfied, (iii) conflict with, violate or breach any applicable Law or legal restriction, the charter or similar organizational documents of the Company or any Company Subsidiary or any material Contract to which the Company or any Company Subsidiary is a party or (iv) would result in a waiver of the attorney-client privilege or the protection of attorney work-product (provided that the withholding party shall use its reasonable best efforts to allow for such access (or as much of it as possible) in a manner that does not result in a loss of attorney client privilege). If any material is withheld by the Company pursuant to this Section 6.04(e), the Company shall, to the extent possible without violating legal restrictions or risking a loss of attorney client privilege, inform the Company as to the general nature of what is being withheld. All information exchanged pursuant to this Section 6.04 shall be subject to the Confidentiality Agreement. (f) Except in the case of losses arising or resulting from fraud or intentional or willful misrepresentation, gross negligence, willful misconduct or willful concealment 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 on other terms as consented to information provided by the Company, such consent not to be unreasonably withheld, delayed Company or conditioned)any Company Subsidiary in connection with the Financing, in each case, which as determined by a final, non-appealable Judgment by a court of competent jurisdiction, Parent shall not expand on indemnify and hold harmless the conditions to Company, the funding Company Subsidiaries and its and their respective Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including reasonable attorney’s fees), interest, awards, judgments and penalties suffered or incurred by them in connection with the arrangement of the Debt Financing at the Closing, reduce the aggregate amount or any offerings of debt securities in lieu of the Debt Financing available to be funded at the Closing, impair the validity and any information utilized in connection therewith (other than information provided by or on behalf of the Debt Financing Company expressly for use in connection therewith) in each case, whether or preventnot the Merger is consummated and/or this Agreement is terminated. Parent shall, impede or delay promptly upon the consummation request of the Debt Financing on Company, reimburse the Closing Date, (iii) satisfy on a timely basis (Company for all out-of-pocket costs or obtain expenses reasonably incurred by the waiver of) all conditions and covenants applicable to Parent and Merger Sub Company in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained connection with cooperation provided for in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingthis Section 6.04. SECTION 6.05.
Appears in 1 contract
Samples: Ix Agreement and Plan of Merger
Financing. (a1) Each of the Parent and Merger Sub shall the Purchaser shall, subject to the terms and conditions of this Agreement, use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the proceeds of the Debt Financing at Closing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after and the date hereofFee Letter, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter and the Fee Letter, as in effect on the date of this Agreement (subject to the last sentence of this Section 4.7(1)), in accordance with its terms, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on (the “Definitive Debt Agreements”) consistent with the terms and subject only conditions contained therein and (iii) satisfy (or, if deemed advisable by the Parent, obtain the waiver of) on a timely basis all conditions applicable to the Purchaser and the Parent (as applicable) in the Debt Commitment Letter, the Fee Letter and the Definitive Debt Agreements and otherwise comply with all of its obligations thereunder. In the event that all conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (and the Fee Letter have been satisfied or on other terms as consented waived and the Parent is required to by consummate the CompanyClosing pursuant to Section 2.9, such consent not the Parent shall use commercially reasonable efforts to be unreasonably withheld, delayed or conditioned), in cause each case, which shall not expand on the conditions Financing Source to the funding fund its respective committed portion of the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses at Closing. Neither the ClosingParent nor the Purchaser shall, reduce without the prior written consent of the Company, permit any amendment or modification to, or any waiver of any provision (including any remedy) under, or replace (it being understood that any Alternative Debt Financing shall not be deemed a replacement for purposes of this sentence), the Debt Commitment Letter or the Fee Letter if such amendment, modification, or waiver or replacement (w) adds new (or adversely modifies any existing) conditions to the consummation of the Debt Financing as compared to those in the Debt Commitment Letter and the Fee Letter as in effect on the date of this Agreement in a manner that would reasonably be expected to prevent, impede or materially delay the consummation of the Arrangement and the other transactions contemplated by this Agreement, (x) reduces the aggregate amount of the Debt Financing below the amount (taking into account all other available sources of funds) required to consummate the Arrangement and the other transactions contemplated by this Agreement and to pay related fees and expenses, or (y) would otherwise reasonably be funded at the Closing, impair the validity of the Debt Financing or expected to prevent, impede or materially delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter Arrangement and the definitive agreements related thereto or, if necessary or deemed advisable other transactions contemplated by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingthis Agreement.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate arrange the Debt Financing on the terms and subject only conditions described in or comparable to the conditions Debt Financing Commitments (PROVIDED that Parent and Merger Sub may replace or amend the Debt Financing Commitments to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Financing Commitments as of the date of this Agreement, or otherwise, so long as the terms are not materially less beneficial to the ability of Parent and Merger Sub to consummate the transactions contemplated hereby (including the “market flex” provisions) set forth Merger on the Effective Date), including with respect to conditionality, than those in the Debt Commitment Letter Financing Commitments as in effect on the date of this Agreement) as promptly as practicable after practicable, on the date hereofterms and conditions described in the Debt Financing Letter, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Commitments, (ii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub to obtaining the Financing set forth therein (including by consummating the Equity Financing pursuant to the terms of the Equity Financing Commitments), (iii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to conditions contained in the conditions Debt Financing Commitments (including the “market flex” flex provisions) set forth in the Debt Commitment Letter (or on other terms as consented not materially less beneficial to by the Company, such consent not ability of Parent and Merger Sub to be unreasonably withheld, delayed or conditionedconsummate the transactions contemplated hereby (including the Merger on the Effective Date), including with respect to conditionality, and not in each case, which shall not expand on violation of this SECTION 5.11 and (iv) consummate the conditions Financing at or prior to Closing. In the funding event any portion of the Debt Financing at becomes unavailable on the Closing, reduce the aggregate amount of terms and conditions contemplated in the Debt Financing available Commitments, Parent shall use its reasonable best efforts to be funded at arrange as promptly as practicable following the Closing, impair occurrence of such event of unavailability to obtain alternative financing from alternative sources in an amount sufficient to consummate the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing transactions contemplated by this Agreement on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable terms no less favorable to Parent and Merger Sub as promptly as practicable following the occurrence of such event. For the avoidance of doubt, in the event that (A) all or any portion of the Debt Financing structured as high yield financing has not been consummated, (B) all closing conditions contained in Article VI shall have been satisfied or waived (other than those contained in SECTIONS 6.02(C) and 6.03(C)) and (C) the bridge facilities contemplated by the Debt Financing Commitments (or alternative bridge financing obtained in accordance with this SECTION 5.11(A)) are available on the terms and conditions described in the Debt Commitment Letter and the definitive agreements related thereto orFinancing Commitments (or replacements thereof as contemplated by this SECTION 5.11(A)), if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and then Merger Sub contained in shall use the proceeds of such Debt Commitment Letter or bridge financing to replace such definitive agreements related thereto, (iv) upon high yield financing no later than the satisfaction or waiver last day of the conditions to Parent’s and Merger Sub’s obligations to consummate Marketing Period. Parent shall give the Closing, consummate Company prompt notice of any material breach by any party of the Debt Financing at the Closing, (v) enforce its rights under Commitments of which Parent or Merger Sub becomes aware or any termination of the Debt Commitment Letter and Financing Commitments. Parent shall keep the definitive agreements relating Company informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under provide to the Debt Commitment Letter and the definitive agreements relating Company copies of all documents related to the Debt Financing.
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Financing. (a) Each of Parent and Merger Sub shall use 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 obtain and consummate the Financing on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof. In furtherance and not in limitation of the foregoing, 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 reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter Letters as promptly as practicable after possible but in any event prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including using reasonable best efforts to by (i) maintain maintaining in effect the Commitment Letters and comply with the Debt Commitment Letter, (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 satisfying (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iiiobtaining a waiver of) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Commitment Letters (including consummating the Refinancing (as defined in the Debt Commitment Letter Letter)) and complying with their obligations thereunder. In the definitive agreements related thereto orevent that all conditions contained in the Commitment Letters (other than (x) with respect to the Debt Financing, if necessary or deemed advisable the availability of the Equity Financing, (y) with respect to the Equity Financing, the availability of the Debt Financing and (z) other conditions that by Parenttheir nature are to be satisfied at the Closing) have been satisfied, seek the waiver of conditions applicable to Parent and Merger Sub contained shall use their reasonable best efforts to cause the Lenders and Investors to fund the Financing in such Debt an amount no less than the Merger Amounts (including by seeking to enforce their rights under the Commitment Letter or such definitive agreements related Letters, in the event of any breach by the other parties thereto, (iv) upon ). To the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations extent necessary to consummate the Closing, consummate Parent will use the Debt proceeds of the Financing at otherwise earmarked for post-Closing obligations and/or cash made available by the Closing, (v) enforce its rights under Company to satisfy Merger Amounts required to be satisfied on the Debt Commitment Letter Closing Date. Each of Parent and the definitive agreements relating to the Debt Financing and (vi) otherwise Merger Sub shall comply with Parent’s and Merger Sub’s covenants and other its respective obligations under the Debt Commitment Letter Letters in a timely and the definitive agreements relating to the Debt Financingdiligent manner.
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Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable actions and best efforts to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt proceeds of the Financing on the terms and subject only to conditions described in the conditions Financing Commitments (including including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter) set forth in the Debt Commitment Letter as promptly as practicable after possible but in any event prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using its reasonable best efforts to (i) maintain in effect the Financing Commitments and comply with the Debt Commitment Letterits obligations thereunder in all material respects, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) consistent with the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter (or including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms as consented that (A) are acceptable to Parent in its sole discretion, (B) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by Section 7.13(b) and comply with its obligations thereunder, and (iii) taking into account the Companyexpected timing of the Marketing Period, such consent not satisfy (or, if reasonably required to obtain the Financing, seek the waiver of) on a timely basis all conditions in the Financing Commitments and the Definitive Agreements that are within the control of Parent and its Subsidiaries. In the event that all conditions contained in the Financing Commitments or the Definitive Agreements (except those that, by their nature, are to be unreasonably withheldsatisfied at the Closing) have been satisfied or waived, delayed or conditioned), in each case, which Parent and Merger Sub shall not expand on the conditions use their reasonable best efforts to the funding of cause the Debt Financing at Sources and the ClosingEquity Financing Sources thereunder to comply with their respective obligations, reduce including to fund the aggregate amount of Financing required to consummate the Debt Financing available transactions contemplated by this Agreement and to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing pay related fees and expenses on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to . Each of Parent and Merger Sub shall use its reasonable best efforts to comply with its respective obligations, and enforce its respective rights, under the Financing Commitments and Definitive Agreements in the Debt Commitment Letter a timely and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to diligent manner. Parent and Merger Sub contained in such Debt Commitment Letter shall give the Company prompt notice of any material breach by any party to the Financing Commitments or such definitive agreements related thereto, (iv) upon the satisfaction Definitive Agreements of which Parent or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate , as applicable, has obtained Knowledge and the Closing, consummate the receipt of any written notice or other written communication from any Debt Financing at the ClosingSource or Equity Financing Source with respect to any breach, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating default, termination or repudiation by any party to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCommitments or any Definitive Agreement of any provision thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Blackhawk Network Holdings, Inc)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the market “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Letters, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment LetterFinancing Letters, (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 “market flex” provisions) set forth in the Debt Commitment Letter Financing Letters (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions subject to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Datefollowing sentence), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Financing Letter that are within their control (including by consummating the Equity Financing at or prior to the Closing on the terms and subject to the conditions set forth in the Equity Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable as further limited by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoSection 8.15(b)), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the ClosingOffer and the Merger, draw the Financing in the amount required to consummate the Transactions on the Closing Date. Parent and Merger Sub 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 Letters if such termination, amendment, supplement, modification or waiver would (A) reduce the aggregate amount of any portion of the Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Financing Letters on the date of this Agreement unless the Debt Financing at or Equity Financing is increased by a corresponding amount) such that the Closingaggregate amount of the Financing would reasonably be expected to be below the amount required to pay the Required Amount, (vB) impose new or additional conditions precedent to the availability of the Financing or otherwise expand, amend or modify any of the conditions precedent to the Financing in a manner that would reasonably be expected to prevent or materially impede or delay the funding of the Financing (or satisfaction of the conditions to the Financing) giving effect to the Marketing Period or (C) adversely impact the ability of Parent or Merger Sub, as applicable, to enforce its rights under against other parties to the Financing Letters; provided, that Parent or Merger Sub may, without the consent of the Company, amend or otherwise modify the Debt Commitment Letter and to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Commitment Letter on the date of this Agreement. Parent shall promptly deliver to the Company copies of any amendment, modification, supplement, consent or waiver to or under any Financing Letter or the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingpromptly upon execution thereof.
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Financing. (a) Each of a. Prior to the Closing, Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper advisable or advisable desirable to arrange, obtain arrange and consummate the Debt Financing on the terms and subject only conditions no less favorable to Parent and Merger Sub than those described in or contemplated by the conditions Commitment Letters and the Fee Letter (including the any “market flex” provisions) set forth provisions that are contained in the Debt Commitment Letter as promptly as practicable after the date hereofFee Letter), including using reasonable best efforts to (i) satisfy on a timely basis (taking into account the anticipated timing of the Marketing Period) all conditions applicable to Parent or Merger Sub set forth in the Commitment Letters and the Fee Letter (including definitive agreements related thereto) that are within its control, including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing, (ii) maintain in effect and the Commitment Letters (subject to Parent’s right to amend, modify, supplement, restate, assign, substitute or replace the Commitment Letters in accordance herewith), comply with its obligations pursuant to the Commitment Letters, diligently enforce their rights under the Commitment Letters and, with respect to the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable no less favorable to Parent and Merger Sub than those described in or contemplated in the Debt Commitment Letter and the definitive agreements related thereto orFee Letter (including any “market flex” provisions contained in the Fee Letter), if necessary (iii) consummate the Financing at or deemed advisable prior to the Closing, (iv) ensure the participation by Parent, seek the waiver a Representative of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoin, and assistance by Representatives of Parent and Merger Sub with, the preparation of rating agency presentations, meetings with ratings agencies and meetings with prospective lenders and (ivv) upon the satisfaction or waiver of the conditions to Parent’s and comply with Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating Fee Letter. If funds in the amounts and on the terms set forth in a Debt Commitment Letter become unavailable to Parent or Merger Sub on the terms and conditions (including any “market flex” provisions contained in the Fee Letter) contemplated in the Debt Commitment Letter and the Fee Letter (other than as a result of the Company’s breach of this Agreement, or if the Company’s failure to perform would be the sole cause of the conditions set forth in Section 7.01 or Section 7.02 not to be satisfied), Parent and Merger Sub shall promptly notify the Company of such fact and shall use their reasonable best efforts to obtain as promptly as practicable alternative debt financing (the “Alternative Financing”) in amounts, when added with the Equity Financing, sufficient to consummate the Transactions, including, for the avoidance of doubt, payment of the Required Amount and that would not (i) include any conditions precedent to the Debt Financing that are not contained in the Debt Commitment Letter and the Fee Letter that would reasonably be expected to (1) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur or (2) materially delay or prevent the Closing and (ii) otherwise reasonably be expected to materially delay or prevent the Closing; provided that Parent and Merger Sub shall not be required to accept any Alternative Financing having terms and conditions (including “market flex” provisions) less favorable to Parent and Merger Sub than those in the Debt Commitment Letter and the Fee Letter; provided, further, that if Parent and Merger Sub proceed with such Alternative Financing, Parent and Merger Sub shall be subject to the same obligations with respect to such Alternative Financing as set forth in this Section 6.09(a) with respect to the Financing, and all references in this Agreement to the “Debt Financing”, “Financing”, “Debt Commitment Letter”, “Fee Letter” and “Commitment Letters” (and other like terms in this Agreement) shall be deemed to also include such Alternative Financing, as applicable. In the event all conditions applicable to the Commitment Letters have been satisfied or waived, Parent shall cause the Fund to fund the Equity Financing and shall use its reasonable best efforts to cause the Persons providing the Debt Financing to fund such Debt Financing required to consummate the Transactions on the Closing Date.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Anixter International Inc)
Financing. (a) Each From the date hereof until the Effective Time and the consummation of Parent the Closing, Buyer and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions arrange and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof, taking into account the anticipated timing of the Marketing Period, including using their reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing thereto on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (including any “flex” provisions applicable thereto) or on other terms as consented and subject to by the Company, such consent other conditions not materially less favorable to be unreasonably withheld, delayed or conditioned)Buyer and Merger Sub, in each case, which terms shall not expand on the conditions precedent to the funding of the Debt Financing at the Closing, Closing or reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateDate to an amount that, when taken together with the aggregate commitments under the Equity Commitment Letter, is less than the Required Amount, (iii) satisfy or obtain a waiver thereof on a timely basis (or obtain the waiver of) all conditions and covenants precedent to the funding of the Debt Financing applicable to Parent Buyer and Merger Sub set forth in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary to be satisfied by Buyer or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt (including by consummating the Equity Financing pursuant to the terms of the Equity Commitment Letter or such definitive agreements related theretoLetter), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing (including by instructing the Debt Financing Sources providing the Debt Financing to provide such Debt Financing following satisfaction of the conditions precedent to the funding thereof) at or prior to the Closing, Closing and (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter Letter. Buyer and Merger Sub shall not and shall cause their Affiliates not to take or refrain from taking, directly or indirectly, any action that would reasonably be expected to result in a failure of any of the definitive agreements relating to conditions contained in the Debt FinancingCommitment Letter, such that any remaining amount of the Debt Financing available to be funded on the Closing Date would be reduced to an amount that, when taken together with the aggregate commitments under the Equity Commitment Letter, is less than the Required Amount. At the request of the Company, Buyer shall keep the Company reasonably informed of the status in reasonable detail of its efforts to arrange and consummate the Debt Financing and of all material developments in respect thereof.
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Financing. (a) Each of Parent shall, and Merger Sub shall cause its Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all reasonable actions actions, and to do, or cause to be done, all reasonable things necessary, proper or advisable reasonably necessary to arrange, obtain and consummate the Debt Financing or any Substitute Financing in an amount sufficient, together with cash on hand that replaces or supplements the Financing consistent with the terms set forth in this Section 7.11, to consummate the Merger and subject only to the conditions other transactions contemplated hereby (including the “market flex” provisionspayment of the Cash Consideration, any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Merger and the other transactions contemplated hereby) set forth in no later than the Debt Commitment Letter as promptly as practicable after Closing, including, to the date hereofextent necessary to consummate the Merger and such other transactions, including using reasonable best efforts to (i) (A) maintain in effect the Commitment Letter and in all material respects comply with the Debt Commitment Letterall of their respective obligations thereunder and (B) negotiate, (ii) negotiate and enter into and deliver definitive agreements with respect to the Debt Financing on reflecting the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on with other terms as consented agreed by Parent and the Financing Parties, subject to by the Company, such consent not to be unreasonably withheld, delayed or conditionedrestrictions on amendments of the Commitment Letter set forth below), so that such agreements are in each caseeffect no later than the Closing, which shall not expand and (ii) satisfying on a timely basis all the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto that are in Parent's (or its Subsidiaries') control. In the event that all conditions set forth in Section 8.1 and Section 8.2 have been satisfied or waived or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver funding of the conditions Financing, shall have been satisfied or waived, Parent shall, and shall cause its Subsidiaries to, use reasonable best efforts to Parent’s and Merger Sub’s obligations cause the Persons providing the Financing to fund on the Closing Date the Financing, to the extent the proceeds thereof are required to consummate the ClosingMerger and the other transactions contemplated hereby (including the payment of the Cash Consideration, consummate any other amounts required to be paid pursuant to Article I and any other fees and expenses reasonably expected to be incurred in connection with this Agreement, the Debt Financing at Merger and the Closingother transactions contemplated hereby). Parent and/or Holdco shall pay, (v) enforce its rights or cause to be paid, as the same shall become due and payable, all fees and other amounts under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingLetter.
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Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, take (or cause to be taken, ) all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain arrange and consummate the Debt Financing on a timely basis on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after and the date hereof, Fee Letters (including using the “flex” provisions) to the extent the proceeds thereof are needed to consummate the transactions contemplated by this Agreement. Parent shall use its reasonable best efforts to (i) maintain in effect the Debt Commitment Letter and comply with the Debt Commitment Letterits obligations and conditions thereunder, (ii) negotiate and enter into definitive agreements on a timely basis with respect to the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) contained in the Debt Commitment Letter or otherwise no less favorable to Parent than those contained in the Debt Commitment Letter (the “Financing Agreements”), (iii) satisfy (or have waived) on a timely basis all conditions and covenants applicable to Parent in the Debt Commitment Letter that are within its control at or prior to the Closing (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), and otherwise comply in all material respects with its obligations under the Debt Commitment Letter (including the Financing Agreements), (iv) enforce all its respective rights under the Debt Commitment Letter and (v) except to the extent Parent otherwise has cash resources at Closing to fund its payment obligations in full hereunder, upon satisfaction of the conditions set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditionedwaiver thereof), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at or prior to the Closing. Parent shall not permit any amendment, (v) enforce its rights supplement or modification to be made to, or any waiver by Parent of any provision or remedy under the Debt Commitment Letter and or any Financing Agreement if such amendment, supplement, modification or waiver expands on the definitive agreements relating conditions precedent or contingencies to the funding on the “Closing Date” of the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under as set forth in the Debt Commitment Letter and as in effect on the definitive agreements relating date of this Agreement, in a manner that would reasonably be expected to prevent, impair or materially delay the consummation of the transactions contemplated by this Agreement; provided that Parent may replace, amend, supplement or modify the Debt Commitment Letter to add agents, co-agents, lenders, arrangers, joint bookrunners, managers or other entities that have not executed the Debt Commitment Letter as of the date hereof in -61- accordance with the provisions therein. Parent shall promptly deliver to the Company true and complete copies of any such replacement, amendment, supplement, modification or waiver. For purposes of this Section 6.09, references to “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as permitted to be amended or modified by this Section 6.09 and references to “Debt Commitment Letter” shall include such documents as permitted to be amended, modified or substituted by this Section 6.09.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable actions and best efforts to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt proceeds of the Financing on the terms and subject only to conditions described in the conditions Commitment Letters (including including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter) set forth in the Debt Commitment Letter as promptly as practicable after possible (taking into account the expected timing of the Marketing Period) but in any event on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using reasonable best efforts with respect to (i) causing the Equity Investors to maintain in effect and comply with the Equity Commitment Letter, (ii) maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) consistent with the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms as consented that (A) are acceptable to Parent in its sole discretion, (B) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by the Company, such consent not to be unreasonably withheld, delayed or conditionedSection 5.12(b), in each case, which shall not expand on and (iv) taking into account the conditions to the funding expected timing of the Debt Financing at Marketing Period, satisfying (or, if reasonably required to obtain the ClosingFinancing, reduce seeking the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iiiwaiver of) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto orDefinitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event that all conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be satisfied at the Closing) have been satisfied or waived, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoshall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, (iv) upon the satisfaction or waiver of the conditions including to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate fund the Debt Financing at the Closing(including, (v) enforce subject to Section 8.7(c), by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its rights under the Debt Commitment Letter and the definitive agreements relating to portion of the Debt Financing and (vi) or otherwise comply with Parent’s and Merger Sub’s covenants and other its obligations under the Debt Commitment Letter or Definitive Agreements). Each of Parent and Merger Sub shall use its reasonable best efforts to comply with its respective obligations, and enforce its respective rights, under the definitive agreements relating to the Debt FinancingCommitment Letters and Definitive Agreements in a timely and diligent manner.
Appears in 1 contract
Financing. (a) Each of Parent the Recipient Parties, with respect to the NRGY Commitment Letter and Merger Sub the Debt Financing contemplated thereby, and the Contributing Parties, with respect to the CH Commitment Letter and the Debt Financing contemplated thereby, shall use their commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable necessary to arrange, obtain and consummate arrange the applicable Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt applicable Commitment Letter as promptly as practicable after the date hereofLetter, including using their commercially reasonable best efforts to (i) maintain in effect and comply with the Debt applicable Commitment Letter, (ii) satisfy on a timely basis all conditions applicable to the Recipient Parties or the Contributing Parties, as the case may be, to obtaining the applicable Debt Financing as set forth in the applicable Commitment Letter that are within its control, (iii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions (including, if necessary, the flex provisions) contemplated by the applicable Commitment Letter, (iv) comply with their obligations under the applicable Commitment Letter and the definitive agreements with respect thereto, (v) subject to the terms and conditions contemplated in the applicable Commitment Letter, consummate the applicable Debt Financing at or prior to the Closing and (vi) enforce their rights under the applicable Commitment Letter. If any portion of the applicable Debt Financing becomes unavailable on the terms and conditions (including the flex provisions) contemplated in the applicable Commitment Letter or the definitive agreements with respect thereto, the Recipient Parties or Contributing Parties, as applicable, shall promptly notify the other and use their commercially reasonable efforts to amend, modify, supplement, alter, restate, substitute or replace the applicable Debt Financing with other alternative financing, as promptly as possible; provided, however, that the Recipient Parties shall not permit any amendment, modification, supplement, alteration, restatement, substitution or replacement of the NRGY Commitment Letter or the Debt Financing related thereto or permit the terms of any definitive agreements with respect to the Debt Financing on to deviate from the terms and subject only to of the conditions (including NRGY Commitment Letter, without the “market flex” provisions) set forth in prior consent of the Debt Commitment Letter (or on other terms as consented to by the CompanyContributing Parties, such consent not to be unreasonably withheld, delayed or conditioned). In such event, the term “NRGY Commitment Letter” or “CW Commitment Letter”, as applicable, as used herein shall be deemed to include the amended, modified, supplemented, altered, restated, substituted or replacement, commitment letter and the term Debt Financing shall be deemed to include the financing contemplated thereby. The Recipient Parties and Contributing Parties shall promptly (and in each case, which shall not expand on any event within two Business Days) notify the conditions other: (i) of any default or breach by any party to the funding applicable Commitment Letter or definitive documents related to the applicable Debt Financing of which such Party is aware; (ii) of the receipt of any written notice from any party to the applicable Commitment Letter with respect to (x) any default, breach, termination or repudiation by any party to the applicable Commitment Letter or definitive documents related to the applicable Debt Financing or (y) any material dispute or disagreement between or among parties to the applicable Commitment Letter or definitive documents related to the Debt Financing at of which the Closingapplicable Party become awares; and (iii) if for any reason the applicable Parties determine in good faith that they will not be able to obtain all or any portion of the applicable Debt Financing on the terms, reduce in the aggregate amount manner or from the sources contemplated by the applicable Commitment Letter. The Recipient Parties and the Contributing Parties shall keep each other informed on a reasonably current basis of the status of their efforts to arrange the Debt Financing available and, in the case of the Recipient Parties, provide copies of all draft and executed documents related to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay to the consummation of Contributing Parties. In the event that the Debt Financing as it relates to the Recipient Parties will not be funded on the Closing Date, (iii) satisfy on a timely basis (or then the Recipient Parties shall obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations any consents required to consummate the Closing, consummate transactions contemplated by this Agreement and the Debt Financing at the Closing, (v) enforce its rights Purchase Agreement under the Debt Commitment Letter and the definitive agreements relating Existing NRGY Credit Agreement prior to the Debt Financing Closing Date; provided, further, that the NRGY Parties shall be permitted to pay any and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating all fees to the Debt Financinglenders and administrative agent in connection with obtaining any such consent without the prior consent of the Contributing Parties.
Appears in 1 contract
Samples: Contribution Agreement (Crestwood Midstream Partners LP)
Financing. (a) Each of Guarantor, Parent and Merger Sub shall (and shall cause their respective Affiliates to) use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, as promptly as reasonably practicable until the earlier to occur of (x) the Closing Date and (y) the valid termination of this Agreement, all reasonable things necessary, proper or advisable and reasonably within their control to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Commitments, including using reasonable best efforts to to: (i) maintain in effect and comply with the Debt Commitment Letterobligations under the Financing Commitments, (ii) promptly negotiate and enter into definitive agreements documents 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 Financing Commitments (or on other terms as consented and subject to by conditions, including any terms and conditions that could affect the Companyconditionality, such consent not to be unreasonably withheldenforceability, delayed availability, termination or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing, not materially less favorable to Guarantor, Parent and Merger Sub than the terms and conditions set forth in the Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateCommitments taken as a whole), (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Guarantor, Parent, Merger Sub and their respective Affiliates in the Debt Commitment Letter Financing Commitments and the definitive agreements related thereto or, if necessary or deemed advisable documents relating to the Financing (including delivering all financial statements of Guarantor to the extent required by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretoFinancing Commitments), (iv) upon consummate the satisfaction Financing at or waiver of the conditions prior to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate including using reasonable best efforts (which shall include taking all actions reasonably within its control) to cause the Debt Financing Sources and the other Persons committing to fund the Financing to fund the Financing at the Closing, (v) enforce its rights and remedies under the Debt Commitment Letter Financing Commitments and the definitive agreements documents relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s its covenants and other obligations under the Debt Commitment Letter Financing Commitments and the definitive agreements documents relating to the Financing. Each of Guarantor, Parent and Merger Sub shall not (and shall cause their respective Affiliates not to), without the prior written consent of Company, agree to or permit any termination of or amendment or modification to be made to, or grant any waiver of any provision under, the Financing Commitments or the definitive documents relating to the Financing if such termination, amendment, modification or waiver would (A) reduce (or could have the effect of reducing) the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue discount) to an amount less than the amount required by Parent and Merger Sub to consummate the Merger Transactions at the Closing, (B)(1) impose new or additional conditions precedent to the availability of the Financing or (2) otherwise expand, amend or modify any of the conditions to the Financing, or otherwise expand, amend or modify any other provision of the Financing Commitments or the definitive documents relating to the Financing, in each case in a manner that would 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, (C) shorten the expiration date of the Financing Commitments or (D) adversely affect the ability of Guarantor, Parent or Merger Sub to enforce their rights and remedies against any other party to any Financing Commitment or the definitive documents with respect to the Financing; provided that, notwithstanding anything to the contrary herein, no consent from Company or any other party hereto shall be required for (I) any amendment, restatement, amendment and restatement, replacement, supplement or other modification of, or waiver or consent under, the Debt Financing Commitments that is limited to adding lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date of this Agreement (including replacement of a Debt Financing Source thereunder) or (II) implementation or exercise of any economic “flex” provision contemplated by the Debt Financing Commitments. Parent shall promptly deliver to Company copies of any amendment, modification or waiver to or under any Financing Commitment or the definitive documents relating to the Financing. Parent or its applicable Affiliate will fully pay, or cause to be paid, all commitment and other fees under or arising pursuant to the Debt Financing Commitments as and when they become due.
Appears in 1 contract
Financing. (a) Each of the Parent and Merger Sub Parties shall (i) use their respective reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter on the terms and conditions described in the Debt Commitment Letter (including the exercise of so-called “flex” provisions in the related fee letter) as promptly as practicable after (taking into account the date hereoftiming of the Marketing Period and the Closing), including using reasonable best efforts to (iA) maintain in full force and effect and comply with the Debt Commitment Letter, (ii) Letter until consummation of the transactions contemplated by this Agreement and to negotiate and enter into execute definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (including any “flex” provisions applicable thereto) or on other the terms that, taken as consented a whole, are not materially less favorable to by Parent than the Company, such consent not to be unreasonably withheld, delayed or conditionedterms contained in the Debt Commitment Letter (including any “flex” provisions applicable thereto), in each case, case which terms shall not in any respect expand on the conditions to the funding of the Debt Financing at the Closing, Closing or reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateDate (the “Debt Financing Agreements”), (iiiB) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to the Parent and Merger Sub Parties in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver Financing Agreements that are to be satisfied by any of the conditions Parent Parties and to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at or prior to the Closing, and (vC) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to cause the Debt Financing Sources, lenders and (vi) otherwise other Persons committing to provide the Debt Financing to comply with Parent’s and Merger Sub’s covenants and other their obligations under the Debt Commitment Letter and the definitive agreements relating Debt Financing Agreements and to fund such Debt Financing at Closing, including, if necessary to consummate the transactions contemplated hereby on a timely basis, by taking enforcement action (including through litigation), (ii) comply with their obligations under the Debt Commitment Letter and the Debt Financing Agreements and (iii) identify to the Partnership in writing, with reasonable specificity, the types of Other Financial Information that Parent requires for the Debt Financing no later than June 12, 2014. Parent shall keep the Partnership informed on a reasonably current basis in reasonable detail of any material developments concerning the status of the Debt Financing. The Parent Parties shall provide the Partnership, upon reasonable request, with copies of any Debt Financing Agreements and such other information and documentation regarding the Debt Financing as shall be reasonably necessary to allow the Partnership to monitor the progress of such financing activities.
Appears in 1 contract
Samples: Purchase Agreement and Agreement and Plan of Merger (Amsurg Corp)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper reasonably necessary or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after (subject to any “flex” provisions applicable thereto) on or prior to the date hereofClosing, including using reasonable best efforts to (ia) maintain in effect and comply with the Debt Commitment Letter, Letter (iiother than as otherwise permitted by this Section 5.19) and negotiate and enter into definitive agreements with respect to the Debt Financing Commitment Letter on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on with other terms agreed by Parent and the Financing Sources, subject to the restrictions on amendments of the Debt Commitment Letter as consented set forth in this Section 5.19), (b) satisfy on a timely basis (or, at the option of Parent, seek waiver of) all conditions to the Debt Financing (or any definitive agreements related thereto) that are applicable Parent and within its control (but excluding any condition where the failure to be so satisfied is a result of any of the Company’s failure to comply with Section 5.18), (c) upon satisfaction of such conditions, consummate the Debt Financing and (d) pay any and all commitment and other fees in a timely manner that become payable by Parent under the Debt Commitment Letter following the date of this Agreement. If any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter (including any related flex terms), Parent shall use reasonable best efforts to arrange to obtain alternative debt financing on terms in the aggregate not materially less favorable to Parent than the Debt Financing contemplated by the Company, Debt Commitment Letter. Without the prior written consent of the Company (such consent not to be unreasonably withheld, delayed conditioned or conditioneddelayed), in each case, which shall Parent may not expand on the conditions to the funding of (A) amend or modify the Debt Financing at the Closing, Commitment Letter (other than to add financing sources) if such amendment or modification would (x) reduce the aggregate amount of the maximum Debt Financing available or (y) impose new or additional conditions to be funded at the Closing, impair the validity of the Debt Financing if such new or prevent, impede additional conditions would reasonably be expected to materially delay or delay prevent the consummation of the Transactions or (B) terminate the Debt Financing on Commitment Letter, unless such Debt Commitment Letter is replaced in a manner consistent with the Closing Datepreceding sentence. In the event that new debt commitment letters are entered into in connection with any amendment, (iii) satisfy on a timely basis (replacement, supplement or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in other modification of the Debt Commitment Letter and the definitive agreements related thereto orpermitted pursuant to this Section 5.19, if necessary or such new commitment letters shall be deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver be a part of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the “Debt Financing” for all purposes of this Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Select Energy Services, Inc.)
Financing. (a) Each of Parent a)(i)Parent and Merger Sub shall will use their respective reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things reasonably necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only to conditions described in the conditions Financing Commitments (including the any applicable “market flex” provisions) set forth in the Debt Commitment Letter as promptly as practicable after the date hereof), including using and use reasonable best efforts to (iA) maintain in effect and comply with the Debt Commitment LetterFinancing Commitments until the Merger is consummated, (iiB) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to the conditions (including the any applicable “market flex” provisions) set forth in contemplated by the Debt Commitment Letter Financing Commitments (or on other terms as consented that are acceptable to by the Company, such consent Parent and could not reasonably be expected to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, (1) reduce the aggregate amount of net cash proceeds available from the Debt Financing available Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to be funded at the Closingprevent, impede, delay or impair the validity availability of the Debt Financing or prevent, impede the ability of Parent or delay Merger Sub to consummate the consummation Merger as of the Debt Closing or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing on the Closing DateCommitments, (iiiC) satisfy on a timely basis (or obtain prior to the waiver of) Closing all conditions and covenants precedent applicable to Parent and Merger Sub in the Debt Commitment Letter and Financing Commitments, (D) consummate the definitive agreements related thereto orFinancing at or prior to the Closing, if necessary or deemed advisable by Parent, seek (E) enforce the waiver rights of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing Commitments and (viF) otherwise comply in all material respects with Parent’s and Merger Sub’s its covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating Financing Commitments. Notwithstanding anything contained herein to the Debt contrary, neither Parent nor Merger Sub will permit any amendment, supplement or other modification of, or waiver of any provision or remedy under, the Financing Commitments to the extent such amendment, supplement, other modification or waiver could reasonably be expected to (1) reduce the aggregate amount of net cash proceeds available from the Financing, (2) introduce new or additional conditions or otherwise be reasonably likely to prevent, impede, delay or impair the availability of the Financing or the ability of Parent or Merger Sub to consummate the Merger as of the Closing, or (3) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Financing Commitments. Parent and Merger Sub will deliver to the Company copies of any such amendment, modification, replacement or waiver promptly upon its execution thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (American Greetings Corp)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions, and shall use reasonable actions and best efforts to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt proceeds of the Financing on the terms and subject only to conditions described in the conditions Commitment Letters (including including, as necessary, the “market flex” provisionsprovisions contained in any related fee letter) set forth in the Debt Commitment Letter as promptly as practicable after possible (taking into account the expected timing of the Marketing Period) but in any event on or prior to the date upon which the Merger is required to be consummated pursuant to the terms hereof, including by using reasonable best efforts with respect to (i) causing the Equity Investors to maintain in effect and comply with the Equity Commitment Letter, (ii) maintaining in effect the Debt Commitment Letter, (iiiii) negotiate negotiating and enter entering into definitive agreements with respect to the Debt Financing on (the “Definitive Agreements”) consistent with the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or including, as necessary, the “flex” provisions contained in any related fee letter) or, if available, on other terms as consented that (A) are acceptable to Parent in its sole discretion, (B) would not reasonably be expected to delay (taking into account the expected timing of the Marketing Period) or adversely affect the ability of Parent to consummate the transactions contemplated hereby and (C) would otherwise be permitted by Section 5.12(b), and (iv) taking into account the Companyexpected timing of the Marketing Period, such consent not satisfying (or, if reasonably required to obtain the Financing, seeking the waiver of) on a timely basis all conditions in the Debt Commitment Letters and the Definitive Agreements that are within the control of Parent or Merger Sub and complying with its obligations thereunder. In the event that all conditions contained in the Debt Commitment Letter or the Definitive Agreements (other than the consummation of the Merger and other than the availability of the Cash Equity and those that by their nature are to be unreasonably withheldsatisfied at the Closing) have been satisfied or waived, delayed or conditioned)Parent and Merger Sub shall use their reasonable best efforts to cause the Lenders thereunder to comply with their respective obligations thereunder, in each case, which shall not expand on the conditions including to the funding of fund the Debt Financing at the Closing(including, reduce the aggregate amount of the Debt Financing available subject to be funded at the ClosingSection 8.7(c), impair the validity by promptly commencing a litigation proceeding against any breaching Lender or other financial institution to compel such Lender or financial institution to provide its portion of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other its obligations under the Debt Commitment Letter or Definitive Agreement). Each of Parent and Merger Sub shall use its reasonable best efforts to comply with its respective obligations, and enforce its respective rights, under the definitive agreements relating to the Debt FinancingCommitment Letters and Definitive Agreements in a timely and diligent manner.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Financial Engines, Inc.)
Financing. (ai) Each Parent has delivered to the Company a true, complete and correct copy of Parent and Merger Sub shall use reasonable best efforts an executed commitment letter (including term sheet) dated December 21, 2012 (the “Debt Financing Commitment Letter”) from Standard Chartered Bank (Hong Kong) Limited (the “Lender”) pursuant to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate which (until such time as the parties thereto enter into the Debt Financing Agreement on the terms and set out in the Debt Financing Commitment Letter, in which case thereafter, pursuant to such Debt Financing Agreement), the Lender has committed to provide debt financing to Parent (the “Debt Financing”) in an aggregate amount set forth therein, subject only to the terms and conditions set forth therein for the purposes of financing the transactions contemplated by this Agreement and related fees and expenses. Parent has delivered to the Company a true, complete and correct copy of (including i) an executed equity commitment letter from the TPG Funds (the “market flexTPG Equity Financing Commitment”) pursuant to which each TPG Fund has committed, subject to the terms and conditions set forth therein, to invest directly or indirectly in Holdings the cash amounts set forth therein (the “TPG Equity Financing”), and (ii) an executed equity commitment letter from Joint Benefit Group Limited (the “Joint Benefit Equity Financing Commitment”) pursuant to which Joint Benefit Group Limited has committed, subject to the terms and conditions set forth therein, to invest directly or indirectly in Holdings the cash amounts set forth there in (the “Joint Benefit Equity Financing”) . The TPG Equity Financing Commitment, Joint Benefit Equity Financing Commitment, the Debt Financing Commitment Letter (until such time as the parties thereto enter into the Debt Financing Agreement) and the Debt Financing Agreement are together referred to herein as the “Financing Documents” provisionsand the TPG Equity Financing together with the Debt Financing are referred to herein as the “Financing.” Parent has delivered to the Company a true, complete and correct copy of an executed Contribution Agreement dated as of the date hereof, pursuant to which the parties thereto have agreed, subject to the terms and conditions set forth therein, that (i) the Rollover Shareholders shall contribute all of the Rollover Shares to Holdings in exchange for newly issued shares of Holdings, and (ii) Holdings shall contribute the Rollover Shares to Parent, in each case, prior to the consummation of the Merger (the foregoing clauses (i) and (ii), collectively, the “Contribution”). The obligation of the Lender to fund the Debt Financing is not subject to any contractual conditions other than as set forth in the Debt Financing Commitment Letter (until such time as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and parties thereto enter into definitive agreements with respect to the Debt Financing Agreement on the terms and subject only to set out in the conditions (including the “market flex” provisions) term sheet, in which case thereafter, other than as set forth in the Debt Commitment Letter (Financing Agreement) , the obligation of the TPG Funds to fund the TPG Equity Financing is not subject to any contractual conditions other than as set forth in the TPG Equity Commitment, and the obligation of Joint Benefit Group Limited to fund the Joint Benefit Equity Financing is not subject to any contractual conditions other than as set forth in the Joint Benefit Equity Financing Commitment. None of the Financing Documents or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed Contribution Agreement has been amended or conditioned), in each case, which shall not expand on the conditions modified prior to the funding date of this Agreement, no such amendment or modification is contemplated, and the respective commitments contained in the Financing Documents and the Contribution Agreement have not been withdrawn, terminated or rescinded in any respect and no such withdrawal, termination or rescission is contemplated (provided, however, that Holdings, Parent and Merger Sub may replace, amend or supplement any or all of the Financing Documents or the Contribution Agreement to the extent permitted by Section 6.12). There are no side letters or other agreements to which Holdings, Parent or Merger Sub is a party related to the Contribution or issuance of new shares of Holdings other than as expressly set forth in the Contribution Agreement and there are no side letters that impact the conditionality of the Debt Financing at or other agreements to which Holdings, Parent or Merger Sub or any of their respective Affiliates is a party related to the Closingfunding or investing, reduce as applicable, of the aggregate full amount of the Debt Financing available (except for (i) any fee letter related to be funded at the Closing, impair the validity of the Debt Financing or prevent(the “Fee Letter”), impede or delay a complete copy of which has been provided to the consummation Company, with only fee amounts in the Fee Letter being redacted and (ii) the Ancillary Debt Agreements; provided, that prior to the execution of this Agreement Parent shall have advised the Company of the Debt Financing on the Closing Datemaximum amount of fees and expenses (including any original issue discount (if any) payable by Holdings, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in under the Debt Commitment Letter Financing). Parent has fully paid any and all commitment fees or other fees in connection with the Financing Documents that are payable on or prior to the date hereof, and the definitive agreements related thereto orFinancing Documents and the Contribution Agreement are in full force and effect and are the legal, if necessary or deemed advisable by Parentvalid, seek the waiver binding and enforceable obligations of conditions applicable to Holdings, Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related Sub, as the case may be, and, to the knowledge of Parent, each of the other parties thereto, in accordance with the terms and conditions thereof, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, and general equitable principles (ivwhether considered in a proceeding in equity or at law). As of the date of this Agreement, and subject to the accuracy of the representations and warranties of the Company set forth in Section 5.1 and compliance by the Company with its obligations hereunder, none of Holdings, Parent or Merger Sub has any knowledge of any occurrence which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Holdings, Parent or Merger Sub or any other party thereto under any of the Financing Documents or the Contribution Agreement or that would otherwise result in the Financing not becoming available in order to consummate the transactions contemplated hereunder. The Financing Documents (including the Fee Letter) upon the satisfaction or waiver contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to Parent’s and Merger Sub’s obligations to consummate , as applicable, on the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter terms therein and the definitive agreements relating Contribution Agreement contains all of the conditions precedent to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under of the Debt Commitment Letter and parties thereunder to make the definitive agreements relating to the Debt FinancingContribution as described therein.
Appears in 1 contract
Financing. (a) Each of Parent and Merger Sub shall use their reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on a timely basis to facilitate the Closing when required by Section 2.01 on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter Letters (provided that Parent and Merger Sub may replace or amend, supplement, modify, waive or supersede any provision in the Debt Commitment Letters as promptly as practicable after the date hereofset forth below), including using their reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, Letters; (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the terms and subject only to conditions contained in the conditions Debt Commitment Letters (including the after giving effect to any “market flex” provisionsprovisions contained therein) set forth in all material respects (the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the “Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, Agreements”); (iii) satisfy on a timely basis (or obtain the waiver of) on a timely basis (taking into account the Marketing Period) all the conditions and covenants to obtain the Debt Financing applicable to Parent and Merger Sub in the Debt Commitment Letter Letters that are within their control; and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its their rights under the Debt Commitment Letter Letters. Parent shall keep the Company reasonably informed on a reasonably current basis of the status of its efforts to arrange the Debt Financing. Without limiting the generality of the foregoing, Parent and Merger Sub shall give the definitive agreements relating Company notice as promptly as practicable: (x) of any material breach or default by any party to any of the Debt Commitment Letters or the Debt Financing Agreements, in each case of which Parent or Merger Sub obtains Knowledge, (y) of the receipt of any written notice or other written communication, in each case, received from any Debt Financing Source with respect to any (A) actual or potential breach of Merger Sub’s obligations under the Debt Commitment Letters or the Debt Financing Agreements, or default or termination or repudiation by any other party to any of the Debt Commitment Letters or the Debt Financing Agreements or (B) material dispute between or among any parties to any of the Debt Commitment Letters or the Debt Financing Agreements, in each case, with respect to the obligation to fund the Debt Financing at Closing on the terms and conditions set forth in the Debt Financing Commitment Letters and (z) of the receipt of any written notice or other written communication on the basis of which Parent believes in good faith that it is reasonably likely that a party to the Debt Financing and will fail to fund the Debt Financing or is reducing the amount of the Debt Financing and, as a result, the aggregate cash amount of the funding commitments thereunder (viafter giving effect to any corresponding increases) otherwise comply would be below the amount that, when combined with Parent’s and Merger Sub’s covenants and other sources of funds, is sufficient to satisfy all of their obligations under this Agreement to be satisfied on the Closing Date on the terms contemplated hereby, including (x) the payment of the amounts payable by Parent pursuant to Article 2 at the Closing, (y) the payment of the Payoff Amount and (z) the payment of all related fees and expenses that are required to be paid by Parent or Merger Sub at Closing pursuant to this Agreement. In the event that any portion of the Debt Financing (including after giving effect to the exercise of any “market flex” provisions) becomes unavailable on the terms and conditions contemplated by the Debt Commitment Letter and Letters (other than as a result of (i) a breach by the definitive agreements relating Company of this Agreement which prevents or renders impracticable the consummation of the Debt Financing or (ii) the termination of the Debt Commitment Letters on or prior to March 7, 2016 pursuant to the terms thereof), (A) Parent shall notify the Company as promptly as practicable and (B) Parent and Merger Sub shall use their reasonable best efforts to arrange and obtain any such portion from alternative sources (such alternative sources, together with the Lenders, the “Debt Financing.Financing Sources”), on terms, taken as whole, that are no less favorable to Merger Sub (including after giving effect to the exercise of any “market flex” provisions) than those set forth in the Debt Commitment Letters as in effect on the date of this Agreement. In furtherance of the provisions of this Section 8.03(a), one or more Debt Commitment Letters may be replaced or amended, restated, supplemented or otherwise modified or superseded at the option of Parent or Merger Sub (as so replaced or amended, restated, supplemented or otherwise modified or superseded, the “New or Amended Debt Commitment Letters”) to (A) add and/or replace lenders, lead arrangers, bookrunners, syndication agents or similar entities, as applicable, (B) modify pricing or implement or exercise any of the “market
Appears in 1 contract
Samples: Agreement and Plan of Merger (Premiere Global Services, Inc.)
Financing. (a) Each of To the extent that the Parent and Merger Sub does not have cash currently, or at any time prior to the Effective Time, available that is sufficient to enable it to consummate the Mergers, Parent shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrangearrange and procure and have available, obtain as of the Effective Time, funds sufficient to pay all of the cash amounts required to be provided by Parent for the consummation of the transactions contemplated hereby, including the amounts payable in connection with the consummation of the Mergers, all related fees and expenses required to be paid as of the date of the consummation of the Mergers and the funds to be provided by (or on behalf of) Parent to the Company to enable the refinancing of the Existing Credit Facility. In furtherance of the foregoing, Parent and the Merger Subs 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 and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in or contemplated by the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Commitments, including using reasonable best efforts to (i) maintain satisfy on a timely basis all conditions to funding in effect and comply with the Debt Commitment LetterFinancing Commitments. Parent and the Merger Subs shall not (without the prior written consent of the Company) consent or agree to any amendment or modification to, (ii) negotiate and or any waiver of any provision under, the Debt Financing Commitments, or enter into definitive agreements any other agreement or arrangement with respect to the Debt Financing on the terms and subject only to the alternative financing, if such amendment, modification or waiver or other agreement or arrangement imposes new or additional material conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on otherwise materially expands any of the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity receipt of the Debt Financing or prevent, impede otherwise would or would reasonably be expected to prevent or materially delay the funding or financing described therein or the consummation of the transactions contemplated by this Agreement; provided, that, for the avoidance of doubt, Parent and the Merger Subs shall be permitted to consent or agree to any amendment or modification, or any waiver of any provision, under the Debt Financing on Commitments if such amendment, modification or waiver solely adds lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitments as of the date hereof as parties thereto. Parent and the Merger Subs acknowledge and agree that the obtaining of the Debt Financing is not a condition to the Closing Date, (iii) satisfy on a timely basis (or obtain and reaffirm their obligation to consummate the waiver of) all conditions transactions contemplated by this Agreement irrespective and covenants applicable to Parent and Merger Sub in independently of the availability of the Debt Commitment Letter and the definitive agreements related thereto orFinancing, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable subject to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction fulfillment or waiver of the conditions set forth in Article VI. Parent shall use commercially reasonable efforts to Parent’s keep the Company informed when so reasonably requested by the Company and Merger Sub’s obligations in reasonable detail of the status of its efforts to consummate arrange any financing required in connection with the Closingconsummation of the transactions contemplated hereby, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the including any Debt Financing.
Appears in 1 contract
Financing. (a) Each of Parent Bidco shall, and Merger Sub shall cause its respective Subsidiaries, and the Equity Investors to use their respective commercially reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, consummate and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter Financing Documents, as promptly as practicable after the date hereofpracticable, including using reasonable best efforts including, but not limited to (i) maintain (and cause the Equity Investors to maintain) in full force and effect and comply with the Debt Commitment LetterFinancing Documents and, to the extent entered into prior to the Closing, the definitive agreements relating to the Financing in a timely and diligent manner (subject to Bidco’s or Bidco’s right to replace, restate, supplement, modify, assign, substitute, waive or amend the Financing Documents in accordance herewith), (ii) negotiate and enter into definitive agreements with respect to the Debt Financing (such definitive agreements, the “Definitive Debt Financing Agreements”) on a timely basis, on the terms and subject only (including, to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented extent necessary to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to ensure the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, agreeing to any requested changes to the terms of the Debt Financing in accordance with the market “flex” provisions contained in the Redacted Fee Letters) and subject to those conditions set forth in the Debt Commitment Letter, (iii) satisfy (or obtain a waiver of), on a timely basis basis, at or prior to the Closing all conditions applicable to (or obtain the waiver and within control of) all conditions and covenants applicable to Parent and Merger Sub Bidco in the Debt Commitment Letter and Financing Documents and, to the extent entered into prior to the Closing, the definitive agreements related thereto or, if necessary relating to the Financing (including by consummating the Equity Financing at or deemed advisable by Parent, seek immediately prior to the waiver of Closing on the terms and subject to the conditions applicable to Parent and Merger Sub contained set forth in such Debt the Equity Commitment Letter or such definitive agreements related theretoLetter), (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate Financing and cause the Debt Financing Sources, the Equity Investors and the other Persons committing to fund the Financing to fund the Financing at the Closing, and (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating Financing Documents to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and extent necessary to timely consummate the transactions contemplated hereby. Bidco will fully pay, or cause to be fully paid, all commitment or other obligations under fees arising pursuant to the Debt Commitment Letter as and the definitive agreements relating to the Debt Financingwhen they become due and payable.
Appears in 1 contract
Samples: Transaction Agreement (Atlantica Sustainable Infrastructure PLC)
Financing. (a) Each of Parent and Merger Sub Purchaser shall (i) use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only to conditions described in or contemplated by the conditions Commitment Letters (including complying with any request requiring the exercise of so-called “market flex” provisions) set forth provisions in the Debt Commitment Letter fee letter) as promptly as practicable after the date hereof, including using reasonable best efforts to (iA) maintain in full force and effect and comply with the Debt Commitment LetterLetters, (iiB) negotiate and enter into execute definitive agreements with respect to the Debt Financing substantially on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (including any “market flex” provisions applicable thereto) or on such other terms as consented to by the Company, such consent that do not to be unreasonably withheld, delayed or conditioned), in each case, which shall not any respect expand on the conditions to the funding of the Debt Financing at the Closing, Closing or reduce the aggregate amount of the Debt Financing available to be funded at the ClosingClosing to an amount less than the Financing Uses (such definitive agreements, impair the validity of the Debt “Definitive Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing DateAgreements”), (iiiC) enforce its rights under the Commitments Letters and (D) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub Purchaser in the Debt Commitment Letters and such Definitive Financing Agreements that are to be satisfied by Purchaser and to consummate the Financing at or prior to the Closing, in each case, to the extent necessary to cause the funding thereunder on the Closing Date to be in an amount, together with amounts funded under the Equity Commitment Letter, not less than the Financing Uses, and (ii) comply with its obligations under the Commitment Letters and the Definitive Financing Agreements to the extent necessary to cause the aggregate amount of funding thereunder on the Closing Date to be in an amount not less than the Financing Uses. Purchaser shall obtain the Equity Financing contemplated by the Equity Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s Closing in Section 7.1 and Merger Sub’s obligations Section 7.2 (other than those conditions that are by their nature to consummate the Closing, consummate the Debt Financing be satisfied at the Closing, (v) enforce but subject to the satisfaction or waiver of such conditions at the Closing). Purchaser shall keep Seller informed on a reasonably current basis in reasonable detail of any material developments concerning the status of its rights under efforts to arrange the Debt Commitment Letter and the definitive agreements relating to Financing, including such information regarding the Debt Financing as shall be reasonably necessary and requested by Seller to allow Seller to monitor the progress of such financing activities (vi) otherwise comply it being acknowledged and agreed that nothing herein shall obligate Purchaser to provide Seller with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt Financingcopies of any Definitive Financing Agreements).
Appears in 1 contract
Financing. (a) Each of Holdings and Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange and obtain and consummate the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth described in the Debt Commitment Letter as promptly as practicable after the date hereofFinancing Documents, including using reasonable best efforts to (i) maintain negotiate and enter into a definitive agreement (the “Debt Financing Agreement”) with respect to, and on the terms and conditions contained in, the term sheet set out in effect and comply with the Debt Financing Commitment Letter as promptly as reasonably practicable after the date hereof, the terms and conditions of which shall not impose new or additional conditions, or otherwise enhance or expand upon or adversely modify the conditions to the closing of the Debt Financing contained in the Debt Financing Commitment Letter, (ii) negotiate and enter into definitive agreements maintain in effect the Financing Documents in accordance with respect to the Debt Financing on the terms and subject only to thereof until the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to transactions contemplated by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Datethis Agreement are consummated, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Holdings, Parent and Merger Sub in the Debt Commitment Letter Financing Documents (including by consummating the financing pursuant to the terms of the TPG Equity Financing and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent Joint Benefit Equity Financing) and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related theretootherwise comply with its obligations thereunder, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the or prior to Closing, (v) seek to enforce its rights (including through litigation pursued in good faith) under the Debt Financing Commitment Letter and Debt Financing Agreement, and (vi) assuming all terms and conditions in the Debt Financing Agreement have been satisfied, cause the Financing Sources and other Persons providing Debt Financing to fund on the Closing Date the Debt Financing required to consummate the Merger and the other transactions contemplated hereby. Each of Holdings and Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under any Financing Document (provided, however, that Holdings, Parent and Merger Sub may replace, amend or supplement the Debt Financing Commitment Letter and the definitive agreements relating Debt Financing Agreement, if such replacements, amendments or supplements, individually or in the aggregate, would not (i) impose new or additional conditions, or otherwise enhance or expand upon or adversely modify the conditions precedent to the Debt Financing and as set forth in the Debt Financing Commitment Letter or the Debt Financing Agreement (vias the case may be) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations in any way, (ii) prevent or impair the availability of the financing or materially delay the financing under the Debt Financing Commitment Letter and or the definitive agreements relating Debt Financing Agreement (as the case may be) or the consummation of the transactions contemplated by this Agreement), or (iii) adversely impact the ability of Holdings, Parent or Merger Sub to enforce its rights against the other parties to the Debt Financing Commitment Letter or the Debt Financing Agreement. For purposes of this Section 6.12, references to “Financing” shall include the financing contemplated by the Financing Documents as permitted in the case of the Debt Financing Commitment Letter or the Debt Financing Agreement (as the case may be), to be replaced, amended or supplemented by this Section 6.12(a) and any Alternative Financing and references to “Financing Documents” or “Debt Financing Agreement” shall include such documents as permitted to be replaced, amended or supplemented by this Section 6.12(a) and any Alternative Financing Agreements.
Appears in 1 contract
Financing. (a) Parent and Merger Sub acknowledge that they shall be fully responsible for obtaining the Equity Financing and each 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 obtain the Equity Financing on the terms and conditions set forth in the Equity Financing Commitment, including (i) maintaining in effect the Equity Financing Commitment, (ii) using reasonable best efforts to ensure the accuracy of all representations and warranties of Parent or Merger Sub set forth in the Equity Financing Commitment, (iii) complying with all covenants and agreements of Parent or Merger Sub set forth in the Equity Financing Commitment, (iv) satisfying, on a timely basis, all conditions applicable to Parent or Merger Sub set forth in the Equity Financing Commitment that are within their control, (v) consummating the Equity Financing in accordance with the Equity Financing Commitment (subject to the terms and conditions set forth therein) at or prior to the Closing (and, in any event, prior to the Termination Date) and (vi) fully enforcing the obligations of the investor party to the Equity Financing Commitment and its investment affiliates (and the rights of Parent and Merger Sub) under the Equity Financing Commitment, including (at the request of the Company) by filing one or more lawsuits against such investor party to fully enforce such investor party’s obligations (and the rights of Parent and Merger) thereunder. Neither Parent nor Merger Sub shall amend, alter or waive, or agree to amend, alter or waive (in any case whether by action or inaction), any term of the Equity Financing Commitment, without the prior written consent of the Company, if such amendment, alteration or waiver would (x) reduce the aggregate amount of the Equity Financing below the amount to be provided as set forth in the Equity Financing Commitment unless the Debt Financing is increased by a corresponding amount or (y) impose new or additional conditions, or otherwise amend, modify or expand any conditions, to the receipt of the Equity Financing in a manner that would reasonably be expected to (A) prevent, delay or impair the Closing, (B) make the funding of the Equity Financing (or satisfaction of the conditions to obtaining the Equity Financing) less likely to occur or (C) adversely impact the ability of Parent and Merger Sub to enforce its rights against the other parties to the Equity Financing Commitment, the ability of Parent and Merger Sub to consummate the transactions contemplated hereby or the likelihood of consummation of the transactions contemplated hereby. Each of Parent and Merger Sub shall use reasonable best efforts agrees to takenotify the Company promptly, and in any event within one (1) Business Day, if at any time prior to the Closing Date (1) the Equity Financing Commitment expires or cause is terminated for any reason (or if any Person attempts or purports to be takenterminate the Equity Financing Commitment, all reasonable actions and whether or not such attempted or purported termination is valid), (2) the investor party to do, or cause the Equity Financing Commitment refuses to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate provide the Debt full Equity Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Equity Financing Commitment Letter as promptly as practicable after or (3) for any reason, Parent or Merger Sub no longer believes in good faith that it will be able to obtain all or any portion of the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Equity Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which Equity Financing Commitment. In no event shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub be required to seek or obtain equity financing other than the Equity Financing and in no event shall the investor party to the Equity Financing Commitment be required to provide equity financing in an amount in excess of the amount set forth in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Equity Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under the Debt Commitment Letter and the definitive agreements relating to the Debt FinancingCommitment.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integramed America Inc)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or ur shall cause to tu be taken, all reasonable actions and to dodu, or cause to be done, all reasonable things necessary, proper or advisable necessary to arrange, obtain and consummate arrange the Debt Financing on the terms and subject only conditions described in the Debt Commitment Letters, including: (i) to negotiate and enter into the definitive agreements with respect thereto on the terms and conditions contained in the Debt Commitment Letters (including, as necessary, the "flex" provisions contained in any related fee letter) (or on other terms and conditions agreed by Parent, the Company and the Financing Sources) by the Closing Date, and (ii) to satisfy or cause to be satisfied (or, if determined advisable by Parent, obtain the waiver ot) on a timely basis all conditions to obtaining the Debt Financing within Parent's control and to comply or cause to be complied with all of its obi igations pursuant to the Debt Commitment Letters and the definitive agreements related thereto to the extent the failure to comply with such obligations would adversely impact the timing of the Closing or the availability at Closing of sufficient aggregate proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement. In the event that all conditions to funding the commitments contained in the Debt Commitment Letters have been satisfied, each of Parent and Merger Sub shall use its reasonable best efforts to cause the Financing Sources to fund the Debt Financing required to consummate the transactions contemplated by this Agreement and to pay related fees and expenses on the Closing Date (including by taking enforcement action to cause the “market flex” provisions) Financing Sources to provide the Debt Financing). Each of Parent and Merger Sub shall use its reasonable best efforts to enforce all of its rights under the Debt Commitment Letters. Parent sh al I give the Company prompt notice of any material breach by any party to the Debt Commitment Letters or the definitive agreements related thereto of which Parent has become aware or any termination of any of the Debt Commitment Letters or such definitive agreements, to the extent such breach or termination could reasonably be expected to prevent or materially delay the Closing or otherwise result in sufficient proceeds of the Debt Financing to consummate the transactions contemplated by this Agreement not being available at the Closing. In the event that any portion of the Debt Financing becomes unavailable and such portion is necessary to consummate the transactions contemplated by this Agreement (except in accordance with the express terms set forth in the Debt Commitment Letters or unless concurrently replaced on a dollar-for-dollar basis by commitments subject to substantially the same conditions as those set forth in the Debt Commitment Letter from other financing sources or from proceeds of other sources of financing or cash), Parent and Merger Sub shall (I) use their reasonable best efforts to obtain, as promptly as practicable after following the date hereofoccurrence of such event, including using reasonable best efforts alternative debt financing for any such portion from alternative debt sources ("Alternative Financing") in an amount that will enable Parent and Merger Sub to consummate the transactions contemplated by this Agreement and that does not contain additional (ior changes to the) maintain in effect and comply with the Debt Commitment Letter, (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 (delivered to the Company on or on other terms as consented prior to by the Company, such consent not to be unreasonably withheld, delayed or conditioned)date of this Agreement that, in each case, could reasonably be expected to adversely affect the ability of Parent or Merger Sub to timely consummate the transactions contemplated by this Agreement and (2) promptly notify the Company of such unavailability and the reason therefor. lfobtained, Parent shall deliver to the Company true and complete copies of all agreements (including redacted copies of engagement and fee letters, removing only fee amounts, market,. flex" provisions and certain other terms (none of which concern or would adversely affect the amounts, availability, timing or conditionality of the Debt Financing)) pursuant to which any such alternative source shall have committed to provide Parent or the Surviving Corporation with Alternative Financing. Parent and Merger Sub shall not, without the Company's prior written consent, permit any amendment or modification to, or any waiver of any provision or remedy under, any Debt Commitment Letter or any definitive agreements related thereto unless the terms of such Debt Commitment Letter or definitive agreements related thereto, in each case as so amended, modified or waived, arc substantially similar to those in such Debt Commitment Letter or definitive agreement related thereto, prior to giving effect to such amendment, modification or waiver (other than economic terms, which shall not expand on be as good as or better for Parent and Merger Sub than those in the conditions Debt Commitment Letter or definitive agreement relating thereto prior to giving effect to such amendment, modification or waiver); provided that, in the case of amendments or modifications of any Debt Commitment Letter or a definitive agreement relating thereto, the foregoing shall only apply if such amendment or modification (x) could reasonably be expected to (I) adversely affect the ability or likelihood of Parent or Merger Sub timely consummating the transactions contemplated by this Agreement or (II) make the timely funding of the Debt Financing at or the Closingsatisfaction of the conditions to obtaining the Debt Financing less likely to occur, reduce (y) reduces the aggregate amount of the Debt Financing available to be funded at or (z) materially and adversely affects the Closing, impair the validity ability of the Debt Financing Parent or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in to enforce their rights against other parties to the Debt Commitment Letter Letters. it being understood and agreed that in any event. Parent may amend the Debt Commitment Letters or the definitive agreements related relating thereto orto (x) add lenders, if necessary arrangers, bookrunners, agenl~, managers or deemed advisable by Parent, seek similar entities that have not executed the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver Letters as of the conditions date of this Agreement and consent to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate assignment after the Debt Financing at the Closing, (v) enforce its rights date of this Agreement oflending commitments under the Debt Commitment Letter and Letters to other lenders, or (y) increase the definitive agreements relating to aggregate amount of the Debt Financing. Parent shall provide the Company with prompt written notice of the receipt of any notice or other communication from any Financing and (vi) otherwise comply Source with Parent’s and Merger Sub’s covenants and other obligations respect to such Financing Source's failure or anticipated failure to fund its commitments under the any Debt Commitment Letter and Letters or definitive agreement in connection therewith. Parent shall keep the definitive agreements relating Company reasonably informed on a current basis of the status of its efforts to consummate the Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger
Financing. (a) Each of Parent and Merger Sub shall use its commercially 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 financing on terms and conditions no less favorable to Parent than those described or otherwise contemplated in the Debt Commitment Letter (the “Debt Financing”), including using its commercially reasonable efforts to (i) negotiate definitive agreements with respect thereto on terms and conditions set forth therein and (ii) satisfy all conditions applicable to Parent in such definitive agreements that are reasonably within its control. Parent shall not permit any amendment or modification to be made to, or any waiver of any provision or remedy under, the Debt Commitment Letter without the Company’s prior written consent if such amendment, modification or waiver would reasonably be expected to (i) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount as compared to the fees and original issue discount contemplated by the Debt Commitment Letter on the date hereof) to a level that would be insufficient to enable Parent to complete the Merger and to satisfy the obligations of Parent under this Agreement, including refinancing the outstanding debt of the Company required in connection with the Merger or as otherwise contemplated by this Agreement and the paying fees and expenses in connection therewith, (ii) impose any new or additional material conditions precedent to the Debt Financing, (iii) adversely impact the conditionality, enforceability or availability of the Debt Financing in any material way or (iv) prevent, impair or delay the consummation of the Debt Financing; provided, however, that Parent may amend or restate the Debt Commitment Letter or any other documentation in respect of the Debt Financing to (1) add lenders, lead arrangers, bookrunners, syndication agents or similar entities as parties thereto who had not executed the Debt Commitment Letter as of the date hereof, (2) implement or exercise any “market flex” provisions contained in the Debt Commitment Letter as of the date hereof and (3) otherwise amend, modify or restate the Debt Commitment Letter in any manner not inconsistent with this sentence. Parent shall promptly deliver to the Company copies of any such amendment, modification or waiver. Parent shall provide the Company with prompt written notice (and, in any event, within two business days) of (i) any termination, repudiation, cancellation or expiration of the Debt Commitment Letter or any definitive agreement related to the Debt Financing, (ii) any material 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) under the Debt Commitment Letter or any definitive document related to the Debt Financing by any party to the Debt Commitment Letter or such definitive document related to the Debt Financing, (iii) the receipt of any written notice or other written communication from a financing source for the Debt Financing with respect to any actual, threatened or potential material breach, default, termination or repudiation by any party to the Debt Commitment Letter or any definitive document related to the Debt Financing of any provisions of the Debt Commitment Letter or any definitive document related to the Debt Financing; and (iv) of the occurrence of an event or development that would reasonably be expected to adversely impact the ability of Parent to obtain all or any portion of the Debt Financing contemplated by the Debt Commitment Letter on the terms, in the manner or from the sources contemplated by the Debt Commitment Letter or the definitive documents related to the Debt Financing, except with respect to any portion of the Debt Financing that would not cause the Debt Financing to be insufficient to enable Parent to complete the Merger and to satisfy the obligations of Parent under this Agreement, including refinancing the outstanding debt of the Company required in connection with the Merger or as otherwise contemplated by this Agreement and paying the fees and expenses in connection therewith. Parent shall use its commercially reasonable efforts to (i) maintain in full force and effect the Debt Commitment Letter until the funding of the Debt Financing at or prior to Closing and negotiate and enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Debt Commitment Letter (which may reflect “market flex” provisions), (ii) satisfy on a timely basis all conditions applicable to it in such definitive agreements that are within its control (or, if deemed advisable by Parent, seek the waiver of such conditions), (iii) upon satisfaction or waiver of such conditions, consummate the Debt Financing and cause the lenders and other Persons committing to fund the Debt Financing to fund such Debt Financing no later than the Closing, (iv) enforce its rights under the Debt Commitment Letter (including by instituting appropriate litigation in respect thereof) and (v) otherwise comply with its obligations under the Debt Commitment Letter. Parent shall not release or consent to the termination of obligations of the financing sources party to the Debt Commitment Letter to the extent that such release or termination would reduce the Debt Financing to a level that would be insufficient to enable Parent to complete the Merger and to satisfy the obligations of Parent under this Agreement, including refinancing the outstanding debt of the Company required in connection with the Merger or as otherwise contemplated by this Agreement and paying the fees and expenses in connection therewith except to the extent contemplated thereby. In the event any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the Debt Commitment Letter, (i) Parent shall promptly notify the Company and (ii) Parent shall use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, arrange to obtain any such portion from the same or alternative sources in an amount sufficient to enable Parent to refinance any outstanding Indebtedness of the Company as contemplated by this Agreement and consummate the Debt Commitment Letter and any fees and expenses in connection thereof on terms and conditions no less favorable to Parent (as determined in the reasonable judgment of Parent) as promptly as reasonably practicable following the occurrence of such event (the “Alternative Debt Financing”); provided that such Alternative Debt Financing shall not (i) include any conditions to funding of the Debt Financing on the terms and subject only to the conditions (including the “market flex” provisions) set forth that are not contained in the Debt Commitment Letter as promptly as practicable after the date hereof, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, or (ii) negotiate and enter into definitive agreements with respect reasonably be expected 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 on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditioned), in each case, which shall not expand on the conditions to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closingprevent, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Merger or the other transactions contemplated by the Merger Agreement. Parent shall promptly provide a true, correct and complete copy of each alternative financing commitment in respect of such Alternative Debt Financing on (“New Debt Commitment Letter”) to the Closing DateCompany. In the event any New Debt Commitment Letter is obtained, (iiii) satisfy on a timely basis (or obtain any reference in this Agreement to the waiver of) all conditions and covenants applicable to Parent and Merger Sub in “Debt Financing” shall include the debt financing contemplated by the Debt Commitment Letter as such term is modified pursuant to the immediately succeeding clause (ii), (ii) any reference in this Agreement to the “Debt Commitment Letter” shall be deemed to include the Debt Commitment Letter to the extent not superseded by a New Debt Commitment Letter at the time in question, and any New Debt Commitment Letters to the definitive agreements related thereto or, if necessary extent then in effect and (iii) any reference in this Agreement to any “fee letter” shall be deemed to include the fee letters relating to the Debt Commitment Letter to the extent not superseded by a or deemed advisable by New Debt Commitment Letter at the time in question and any New Debt Commitment Letters to the extent then in effect. The parties agree that Parent, seek ’s execution of any amendment to or amendment and restatement of the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon a New Debt Commitment Letter shall not materially expand the satisfaction or waiver scope of the conditions assistance required under Section 6.12(b) as compared to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce its rights under assistance that would be required in connection with the Debt Commitment Letter in effect on the date of this Agreement and the definitive agreements relating related Debt Financing. Upon request of the Company, Parent shall keep the Company reasonably informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange the Debt Financing or any Alternative Debt Financing, and provide to the Company copies of the material definitive documents (viredacted to the extent necessary) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under for the Debt Commitment Letter and the definitive agreements relating to the Financing or any Alternative Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (LSC Communications, Inc.)
Financing. (a) Each of Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only has delivered to the conditions (including Company a true and complete copy of the “market flex” provisions) set forth in the executed Debt Commitment Letter and Funds Commitment Letter. Neither of the Commitment Letters has been amended or modified in any manner since Parent provided, on or prior to the date of this Agreement, a fully executed copy of such Commitment Letters dated as promptly as practicable after of the date hereof. Neither Parent nor any of its affiliates has entered into any agreement, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements side letter or other arrangement with respect to the Debt Financing relating to the Debt Commitment Letter among the parties thereto that would add any condition precedent to funding of the Debt Financing, reduce the amount of the Debt Financing below an amount necessary (together with the Funds Financing) to fund all of the amounts required to be provided by Parent or Merger Sub for the consummation of the Transactions (including the payment of the Merger Consideration), adversely affect the availability of the Debt Financing or delay or prevent the Closing or make the funding of the Debt Financing less likely to occur. Assuming the satisfaction of the closing conditions set forth in Section 6.1 and Section 6.3 and that the Financing is funded in accordance with the Commitment Letters (including any “market flex” provisions related thereto), the aggregate net proceeds of the Financing (both before and after giving effect to the exercise of any or all “market flex” provisions related thereto) when funded in accordance with the terms of the Commitment Letters will be sufficient to consummate the Transactions contemplated hereby, including the payment of the Merger Consideration on the terms Closing Date. As of the date hereof, the respective commitments contained in the Commitment Letters have not been withdrawn, rescinded or repudiated in any respect. As of the date hereof, the Commitment Letters are in full force and effect and represent a valid, binding and enforceable obligation of Parent and, to the Knowledge of Parent, each other party thereto, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the conditions (including the “market flex” provisions) set forth in the Debt Commitment Letter Letters and except as limited by Laws affecting the enforcement of creditors’ rights generally, by general equitable principles or by the discretion of any Governmental Entity before which any Proceeding seeking enforcement may be brought (regardless of whether enforcement is sought in a proceeding at law or in equity). Parent has fully paid (or caused to be fully paid) any and all commitment fees and other amounts that are due and payable by Parent on or prior to the date of this Agreement in connection with the Financing. As of the date hereof, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a material breach or default on the part of Parent or, to the Knowledge of Parent, any other terms as consented to party thereto under any of the Commitment Letters. Assuming the satisfaction of the conditions set forth in Section 6.1 and Section 6.3 and compliance by the CompanyCompany with Section 5.11, such consent not Parent has no reason to believe that it or any Financing Source or source of the Funds Financing or any other party thereto will be unable to satisfy on a timely basis any term or condition of the Commitment Letters required to be unreasonably withheldsatisfied by it. As of the date hereof, delayed the only conditions precedent or conditioned), in each case, which shall not expand on the conditions other contingencies related to the funding of the Debt Financing at on the Closing, reduce the aggregate amount of Closing Date that will be included in the Debt Financing available to Documents shall be funded at the Closing, impair conditions set forth in the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing Commitment Letters as in effect on the Closing Datedate hereof. Parent understands and acknowledges that under the terms of this Agreement, (iii) satisfy on a timely basis (Parent’s obligation to consummate the Merger is not in any way contingent upon or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions otherwise subject to Parent’s and Merger Sub’s obligations to consummate the Closingconsummation of any financing arrangements, consummate the Debt Financing at the Closing, (v) enforce its rights under the Debt Commitment Letter and the definitive agreements relating to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under obtaining of any financing or the Debt Commitment Letter and the definitive agreements relating availability, grant, provision or extension of any financing to the Debt FinancingParent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wesco Aircraft Holdings, Inc)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, advisable or proper to obtain the proceeds of the Financing contemplated by the Commitment Letters on or advisable prior to arrange, obtain and consummate the Debt Financing Closing Date on the terms and conditions described in the Commitment Letters (subject only to replacement thereof in accordance with Section 5.16(c)), including (i) maintaining in full force and effect the Commitment Letters and any Definitive Debt Financing Agreements and complying with its obligations thereunder (subject to replacement thereof in accordance with Section 5.16(c)), (ii) satisfying on a timely basis all conditions to the funding of the Financing set forth in the Commitment Letters and the Definitive Debt Financing Agreements no later than at the Closing, (iii) negotiating and entering into definitive debt financing agreements on the terms and conditions contemplated by the Debt Commitment Letter (including the including, if necessary, any “market flex” provisions) set forth or, in the Debt Commitment Letter as promptly as practicable after the date hereofPurchaser’s sole discretion, including using reasonable best efforts to (i) maintain in effect and comply with the Debt Commitment Letter, (ii) negotiate and enter into definitive agreements with respect to the Debt Financing on the other terms and subject only to the conditions (including the “market flex” provisions) set forth than those contained in the Debt Commitment Letter (or on other terms as consented to by the Company, such consent not to be unreasonably withheld, delayed or conditionedincluding any “flex” provisions), in each case, which such other terms shall not expand on constitute a Restricted Amendment (the conditions to the funding of “Definitive Debt Financing Agreements”), (iv) consummating the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available or prior to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained in such Debt Commitment Letter or such definitive agreements related thereto, (iv) upon the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) enforce enforcing its rights under the Debt Commitment Letter and in the definitive agreements relating event of a breach by the Debt Financing Sources of the Commitment Letter, including through litigation. In the event that all conditions contained in any Commitment Letter or the Definitive Debt Financing Agreements (other than, with respect to the Debt Financing, the availability of the Equity Financing) have been satisfied, Parent and Merger Sub shall use reasonable best efforts to cause the Debt Financing Sources thereunder or Parent Sponsor, as applicable, to comply with their respective obligations thereunder, including to fund the Financing. Parent and Merger Sub shall keep the Company informed in reasonable detail of the status of its efforts to arrange the Financing and any other financing upon the written request of the Company and shall give the Company prompt written notice of (vii) otherwise comply any breach by any party to the Commitment Letters or Definitive Debt Financing Agreements of any material provision which Parent or Merger Sub has become aware, (ii) the expiration or termination in writing (or attempted or purported termination in writing, whether or not valid) of the Debt Commitment Letter, (iii) any written or electronic (including email) notice or communication by any Debt Financing Source with Parent’s and Merger Sub’s covenants and other obligations under respect to any actual or threatened breach, default (or allegation thereof), repudiation by any party to the Debt Commitment Letter and or any Definitive Debt Financing Agreement or any refusal to provide, or stated intent that it will not provide, by any Debt Financing Source, the definitive agreements relating to full amount of the Debt FinancingFinancing contemplated by the Debt Commitment Letter for any reason or (iv) Parent’s or Merger Sub’s good faith belief, for any reason, that it may no longer be able to obtain all or any portion of any Financing contemplated by the Commitment Letters on the terms and conditions described therein.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Circor International Inc)
Financing. (a) Each of Parent and Merger Sub shall use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary, proper or advisable to arrange, obtain and consummate the Debt Financing on the terms and subject only conditions described in the Financing Letters (or on terms no less favorable to Parent or Merger Sub (including with respect to the conditionality thereof)) and shall not permit any amendment or modification to be made to, or any waiver of any material provision or remedy under the Financing Letters, if such amendment, modification or waiver reduces the aggregate amount of the Financing or amends the conditions (including precedent to the “market flex” provisions) set forth Financing in a manner that would reasonably be expected to delay or prevent the Closing Date or make the funding of the Financing less likely to occur; provided, however, that Parent and Merger Sub may replace and amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities who had not executed the Debt Commitment Letter as promptly as practicable after of the date hereof, including using . Each of Parent and Merger Sub shall use its reasonable best efforts to (i) to maintain in effect the Financing Letters and comply with the Debt Commitment Letter, (ii) to negotiate and enter into definitive agreements with respect to the Debt Financing Commitment Letter on the terms and subject only to the conditions (including the “market flex” provisions) set forth contained in the Debt Commitment Letter (or on other terms as consented no less favorable to by Parent or Merger Sub than the Company, such consent not to be unreasonably withheld, delayed or conditionedterms and conditions in the Debt Commitment Letter), in each case, which shall not expand on the conditions (ii) to the funding of the Debt Financing at the Closing, reduce the aggregate amount of the Debt Financing available to be funded at the Closing, impair the validity of the Debt Financing or prevent, impede or delay the consummation of the Debt Financing on the Closing Date, (iii) satisfy on a timely basis (or obtain the waiver of) all conditions and covenants applicable to Parent and Merger Sub in the Debt Commitment Letter and the definitive agreements related thereto or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent and Merger Sub contained it in such Debt Commitment Letter or such definitive agreements related theretothat are within its control, (iii) upon satisfaction of such conditions, to consummate the Financing at or prior to the Closing, (iv) upon to comply with its obligations under the satisfaction or waiver of the conditions to Parent’s Financing Letters and Merger Sub’s obligations to consummate the Closing, consummate the Debt Financing at the Closing, (v) to enforce all of its rights under the Debt Commitment Letter and the definitive agreements relating related thereto. Parent shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing and provide to the Debt Financing and (vi) otherwise comply with Parent’s and Merger Sub’s covenants and other obligations under Company, upon its request, copies of the definitive documents related to the Financing. In the event that all conditions in the Debt Commitment Letter have been satisfied or, upon funding will be satisfied, Parent and Merger Sub shall use their reasonable best efforts to cause the Persons providing the Debt Financing to fund on the Closing Date the Debt Financing required to consummate the Merger and the definitive agreements relating other transactions contemplated hereby (including by taking enforcement action to cause the Persons providing the Debt Financing to fund such Debt Financing).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Internet Brands, Inc.)
