Refinancing Securities. (a) So long as any Commitments or Loans remain outstanding under this Agreement, at any time and from time to time on or after [REDACTED – Time Period] and prior to the [REDACTED – Time Period] (but no more than [REDACTED – Commercially Sensitive Information]), the Designated Lead Arrangers, acting collectively, may make a proposal to the Borrower, for an offering of Refinancing Securities by the Arrangers in such amounts and on such terms and conditions as specified in the Extended Bridge Securities Demand (as defined in the Fee Letter) all as the Investment Banks (as defined in the Fee Letter) in their reasonable judgment determine in consultation with the Borrower; provided, that each issuance of Refinancing Securities shall be in respect of gross proceeds of a minimum of [REDACTED – Dollar Amount] or, if less, an amount equal to the aggregate principal amount of outstanding Loans; provided, further that: (i) in connection with any such offering of Refinancing Securities, the Arrangers shall offer to participate in a customary “roadshow” with respect to the applicable Refinancing Securities, which roadshow, for the avoidance of doubt, may occur prior to or following the Closing Date; provided that (x) the Borrower will participate and assist in such roadshow upon the reasonable request of the Arrangers and (y) no such roadshow shall be required to be offered by the Arrangers if the Arrangers in good faith in consultation with the Borrower determine that conducting such roadshow would be commercially futile; and provided further that, neither the commencement nor completion of any such roadshow shall constitute a condition to the availability of the offering or Refinancing Securities; (ii) the Refinancing Securities shall have a maturity of not shorter than [REDACTED – Time Period]; (iii) the Refinancing Securities shall be optionally redeemable subject to a customary make-whole prior to [REDACTED – Time Period] and call premiums equal to [REDACTED – Percentage] of the coupon on such Refinancing Securities on [REDACTED – Time Period] declining to [REDACTED – Percentage] of the coupon on [REDACTED – Time Period], and [REDACTED – Commercially Sensitive Information] on [REDACTED – Time Period] and thereafter; (iv) prior to [REDACTED – Time Period], [REDACTED – Percentage] of such Refinancing Securities shall be optionally redeemable at par plus the applicable coupon with the proceeds of certain equity offerings; (i) the issue price of any Refinancing Securities shall not be less than [REDACTED – Percentage] of the principal amount thereof before deducting underwriting fees and commissions and (ii) the interest rate(s) on the Refinancing Securities will be determined by the Designated Lead Arrangers in light of the then prevailing market conditions in consultation with the Borrower, but in no event will the weighted average effective yield (including original issue discount or upfront fees but excluding any underwriting or purchase discount or fees) in respect of any tranche of Refinancing Securities exceed the Total Cap for such Refinancing Securities by more than [REDACTED – Percentage] per annum; (vi) at the date of issuance or incurrence, the weighted average total yield on the Refinancing Securities issued as a refinancing of, or financing in lieu of, the Loans hereunder, together with any outstanding Loans, shall not exceed the Total Cap per annum; (vii) any such Refinancing Securities shall be issued through a private placement or, at the Borrower’s sole option, a private placement with registration rights; (viii) the guarantee structure shall be consistent with that provided under this Agreement as in effect at the time of the request; (ix) all other arrangements with respect to the Refinancing Securities will be as are reasonable and customary for Debt of the type issued and as reasonably specified by the Designated Lead Arrangers in consultation with the Borrower in light of then prevailing market conditions for comparable Debt issuances; (x) the aggregate amount of proceeds of the Refinancing Securities shall not exceed an amount sufficient to repay the Obligations then outstanding hereunder; and (xi) the Refinancing Securities will contain such other terms, conditions and covenants as are customary for the type and nature of such Refinancing Securities, in light of then prevailing market conditions, taking into account the Borrower and its subsidiaries’ operational and strategic requirements in light of the Borrower and its subsidiaries’ size, industries, businesses and business practices, operations, financial accounting and projections (in each case, taking into account the consummation of the Acquisition); provided that in no event shall any of such covenants be more restrictive from the perspective of the Borrower and its subsidiaries than the terms hereunder. (b) To assist the Arrangers in a timely completion of the offering of Refinancing Securities, the Borrower agrees, upon the Arrangers’ reasonable request: (i) to promptly furnish or cause to be furnished to the Designated Lead Arrangers such customary information as it may reasonably request regarding the Borrower and the applicable issuer, including all information to be included in any offering memorandum, prospectus or other disclosure document as would be customary in a customary offering for the applicable type of securities and such other data that would enable the Designated Lead Arrangers, among other things, to obtain customary comfort letters from each of the Borrower’s and its Subsidiaries’’ independent chartered professional accountants (which, for the avoidance of doubt, shall not include financial statements required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, information regarding executive compensation (including under Rule 402(b) of Regulation S-K) or other information customarily excluded from a Rule 144A offering memorandum or prospectus, as applicable; provided that customary data as to the total assets, revenue, EBITDA, Consolidated Adjusted EBITDA and liabilities of non-guarantor subsidiaries shall be provided); (ii) to make the Borrower’s senior officers and representatives available to, at reasonable times and upon reasonable advance notice by, the Arrangers in connection with the offering of Refinancing Securities, including making them available to assist in the preparation of one or more Offering Documents (including assistance in obtaining industry data), to participate in due diligence sessions and to participate in one or more road shows to market the Refinancing Securities; (iii) to prepare as soon as reasonably necessary and practicable upon request, a prospectus or other applicable offering document with respect to the Refinancing Securities (other than a “description of securities”) (provided that the Borrower shall have used good faith efforts to finalize the “description of securities”) (such document, an “Offering Document”) customary for such a transaction and to assist the Arrangers in preparing other appropriate marketing materials, in each case to be used in connection with the such offering; and (iv) to use commercially reasonable efforts to cause the auditors of the Borrower and its Subsidiaries to issue comfort letters with respect to such offering, each in form and substance customary for the applicable type of offerings.
Appears in 1 contract
Samples: Extended Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Refinancing Securities. (a) So long as any Commitments or Loans remain outstanding under this Agreement, at any time The Obligors will use all reasonable endeavours to (i) cause the issuer of the Debt Refinancing Securities and from time to time on or after [REDACTED – Time Period] and prior to the [REDACTED – Time Period] (but no more than [REDACTED – Commercially Sensitive Information]), the Designated Lead Arrangers, acting collectively, may make a proposal to the Borrower, for an offering as issuer of Refinancing Securities by the Arrangers in such amounts and on such terms and conditions as specified in the Extended Bridge Securities Demand (as defined in the Fee Letter) all as the Investment Banks (as defined in the Fee Letter) in their reasonable judgment determine in consultation with the Borrower; provided, that each issuance of Refinancing Securities shall be in respect of gross proceeds of a minimum of [REDACTED – Dollar Amount] or, if less, an amount equal to the aggregate principal amount of outstanding Loans; provided, further that:
(i) in connection with any such offering of Equity Refinancing Securities, to offer and sell the Arrangers shall offer to participate in a customary “roadshow” with respect to Debt Refinancing Securities and the applicable Equity Refinancing Securities, which roadshowas the case may be, for the avoidance in any one or a series of doubt, may occur prior to or following the Closing Date; provided that (x) the Borrower will participate and assist offerings in such roadshow upon the reasonable request of the Arrangers and (y) no such roadshow shall be required to be offered by the Arrangers if the Arrangers in good faith in consultation with the Borrower determine that conducting such roadshow would be commercially futile; and provided further that, neither the commencement nor completion of any such roadshow shall constitute a condition to the availability of the offering or Refinancing Securities;
(ii) the Refinancing Securities shall have a maturity of not shorter than [REDACTED – Time Period];
(iii) the Refinancing Securities shall be optionally redeemable subject to a customary make-whole prior to [REDACTED – Time Period] and call premiums equal to [REDACTED – Percentage] of the coupon on such Refinancing Securities on [REDACTED – Time Period] declining to [REDACTED – Percentage] of the coupon on [REDACTED – Time Period], and [REDACTED – Commercially Sensitive Information] on [REDACTED – Time Period] and thereafter;
(iv) prior to [REDACTED – Time Period], [REDACTED – Percentage] of such Refinancing Securities shall be optionally redeemable at par plus the applicable coupon with the proceeds of certain equity offerings;
(i) the issue price of any Refinancing Securities shall not be less than [REDACTED – Percentage] of the principal amount thereof before deducting underwriting fees and commissions and (ii) the interest rate(s) on the Refinancing Securities will be determined by the Designated Lead Arrangers in light of the then prevailing market conditions in consultation with the Borrower, but in no event will the weighted average effective yield (including original issue discount or upfront fees but excluding any underwriting or purchase discount or fees) in respect of any tranche of Refinancing Securities exceed the Total Cap for such Refinancing Securities by more than [REDACTED – Percentage] per annum;
(vi) at the date of issuance or incurrence, the weighted average total yield on the Refinancing Securities issued as a refinancing of, or financing in lieu of, the Loans hereunder, together with any outstanding Loans, shall not exceed the Total Cap per annum;
(vii) any such Refinancing Securities shall be issued through a private placement or, at the Borrower’s sole option, a private placement with registration rights;
(viii) the guarantee structure shall be consistent with that provided under this Agreement as in effect at the time of the request;
(ix) all other arrangements with respect to the Refinancing Securities will be as are reasonable and customary for Debt of the type issued and as reasonably specified by the Designated Lead Arrangers in consultation with the Borrower in light of then prevailing market conditions for comparable Debt issuances;
(x) the aggregate amount of proceeds of the Refinancing Securities shall not exceed an amount sufficient to repay refinance in full the Obligations then outstanding hereunder; and
Facility, (xiii) the to issue, offer and sell Equity Refinancing Securities will contain such other terms, conditions in an amount (nominal and covenants as are customary for the type and nature of such Refinancing Securities, in light of then prevailing market conditions, taking into account the Borrower and its subsidiaries’ operational and strategic requirements in light premium) at least equal to 50% of the Borrower Total Commitments and its subsidiaries’ size(iii) to pay all fees and expenses related thereto, industries, businesses and business practices, operations, financial accounting and projections (in each case, taking into account as promptly as practicable after the consummation date of the Acquisition); provided that in no event shall any of such covenants be more restrictive from the perspective of the Borrower and its subsidiaries than the terms hereunderinitial Utilisation.
(b) To The Borrower will cause all members of the Group, their counsel and their auditors to reasonably assist and facilitate the Arrangers Managers, in their capacity as underwriters of the Refinancing Securities, in completing due diligence, including providing access to Group personnel, legal and tax advisors and facilities at such reasonable times as shall be requested.
(c) The Borrower will deliver to the Managers, in their capacity as underwriters of the Refinancing Securities, completed printed preliminary offering circulars for the distribution of the Refinancing Securities in a timely completion form customary for offerings underwritten by the Managers, in their capacity as underwriters of the Refinancing Securities, in the debt and equity, as the case may be, securities markets suitable to use on a road show. The Borrower will deliver completed final offering circulars in accordance with the Manager’s customary market practice in such markets.
(d) The Borrower will cause senior management of the Borrower and of the issuer of any Debt Refinancing Securities to participate in road shows for the sale of the Refinancing Securities and other customary marketing efforts.
(e) Prior to such road show or road shows, the Borrower will prepare materials for, and participate in, presentations to the appropriate rating agencies to obtain ratings for the Debt Refinancing Securities.
(f) Upon the pricing and the closing of the offering or offerings of Refinancing Securities, the Borrower agreeswill cause (i) its auditors, upon Target’s auditors and any other required auditors to deliver, in each case, to the ArrangersManagers, in their capacity as underwriter of the Refinancing Securities and as representatives of the several underwriters, a comfort letter or letters, as appropriate, in a form customary for the Managers’ reasonable request:offering of securities in the relevant debt or equity markets and (ii) its legal counsel to deliver customary legal opinions and “10b-5 letters” to the Managers, in their capacity as underwriters of the Refinancing Securities and as representatives of the several underwriters.
(g) The indenture for and the terms and conditions of any high yield Debt Refinancing Securities will be substantially in the form of the indenture for, and terms and conditions of, the Borrower’s high yield debt securities issued in April 2005, modified as appropriate to reflect changes in the financial condition and prospects of the Borrower and the Group, prevailing conditions and terms that are customary in the market for high yield debt securities by European issuers, or otherwise in form and substance reasonably satisfactory to the Managers and following consultation with the Borrower.
(h) If any U.S. Dollar-denominated Debt Refinancing Securities are issued in a transaction not registered under the Securities Act, such Refinancing Securities shall be entitled to the benefit of a registration rights agreement to be entered into by the issuer of the Debt Refinancing Securities substantially in the form of the registration rights agreement for the Borrower’s high yield debt securities issued in April 2005.
(i) to promptly furnish or cause to be furnished to the Designated Lead Arrangers such customary information as it may reasonably request regarding the The Borrower and the applicable issuer, including will use all information to be included in any offering memorandum, prospectus or other disclosure document as would be customary in a customary offering for the applicable type of securities and such other data that would enable the Designated Lead Arrangers, among other things, to obtain customary comfort letters from each of the Borrower’s and its Subsidiaries’’ independent chartered professional accountants (which, for the avoidance of doubt, shall not include financial statements required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, information regarding executive compensation (including under Rule 402(b) of Regulation S-K) or other information customarily excluded from a Rule 144A offering memorandum or prospectus, as applicable; provided that customary data as to the total assets, revenue, EBITDA, Consolidated Adjusted EBITDA and liabilities of non-guarantor subsidiaries shall be provided);
(ii) to make the Borrower’s senior officers and representatives available to, at reasonable times and upon reasonable advance notice by, the Arrangers in connection with the offering of Refinancing Securities, including making them available to assist in the preparation of one or more Offering Documents (including assistance in obtaining industry data), to participate in due diligence sessions and to participate in one or more road shows to market the Refinancing Securities;
(iii) to prepare as soon as reasonably necessary and practicable upon request, a prospectus or other applicable offering document with respect to the Refinancing Securities (other than a “description of securities”) (provided that the Borrower shall have used good faith efforts to finalize the “description of securities”) (such document, an “Offering Document”) customary for such a transaction and to assist the Arrangers in preparing other appropriate marketing materials, in each case to be used in connection with the such offering; and
(iv) to use commercially reasonable efforts to cause list any high yield Debt Refinancing Securities on the auditors of Luxembourg Stock Exchange (or another exchange reasonably satisfactory to the Borrower Managers) and its Subsidiaries to issue comfort letters with respect to maintain such offering, each in form and substance customary listing for the applicable type of offeringsso long as any such Debt Refinancing Securities are outstanding.
Appears in 1 contract
Samples: Single Currency Term Facility Agreement (General Geophysics Co)
Refinancing Securities. (a) So long as any Commitments or Loans remain outstanding under this Agreement, at any time and from time to time on or after [REDACTED – Time Period] and prior to the [REDACTED – Time Period] (but no more than [REDACTED – Commercially Sensitive Information]), the Designated Lead Arrangers, acting collectively, may make a proposal to the Borrower, for an offering of Refinancing Securities by the Arrangers in such amounts and on such terms and conditions as specified in the Extended Bridge Securities Demand (as defined in the Fee Letter) all as the Investment Banks (as defined in the Fee Letter) in The Obligors will use their reasonable judgment determine in consultation with the Borrower; provided, that each issuance of Refinancing Securities shall be in respect of gross proceeds of a minimum of [REDACTED – Dollar Amount] or, if less, an amount equal best efforts to the aggregate principal amount of outstanding Loans; provided, further that:
(i) in connection with any such offering cause the issuer of the Debt Refinancing Securities to offer and sell the Debt Refinancing Securities, in any one or a series of offerings, in an amount sufficient to finance the Arrangers shall offer to participate Merger or refinance in a customary “roadshow” with respect to full the applicable Refinancing SecuritiesFacility, which roadshowas applicable, for the avoidance of doubt, may occur prior to or following the Closing Date; provided that (x) the Borrower will participate and assist in such roadshow upon the reasonable request of the Arrangers and (y) no such roadshow shall be required to be offered by the Arrangers if the Arrangers in good faith in consultation with the Borrower determine that conducting such roadshow would be commercially futile; and provided further that, neither the commencement nor completion of any such roadshow shall constitute a condition to the availability of the offering or Refinancing Securities;
(ii) the Refinancing Securities shall have a maturity of not shorter than [REDACTED – Time Period];
(iii) the Refinancing Securities shall be optionally redeemable subject to a customary make-whole prior to [REDACTED – Time Period] and call premiums equal to [REDACTED – Percentage] of the coupon on such Refinancing Securities on [REDACTED – Time Period] declining to [REDACTED – Percentage] of the coupon on [REDACTED – Time Period], and [REDACTED – Commercially Sensitive Information] on [REDACTED – Time Period] and thereafter;
(iv) prior to [REDACTED – Time Period], [REDACTED – Percentage] of such Refinancing Securities shall be optionally redeemable at par plus the applicable coupon with the proceeds of certain equity offerings;
(i) the issue price of any Refinancing Securities shall not be less than [REDACTED – Percentage] of the principal amount thereof before deducting underwriting fees and commissions and (ii) the interest rate(s) on the Refinancing Securities will be determined by the Designated Lead Arrangers in light of the then prevailing market conditions in consultation with the Borrowerto pay all fees and expenses related thereto, but in no event will the weighted average effective yield (including original issue discount or upfront fees but excluding any underwriting or purchase discount or fees) in respect of any tranche of Refinancing Securities exceed the Total Cap for such Refinancing Securities by more than [REDACTED – Percentage] per annum;
(vi) at the date of issuance or incurrence, the weighted average total yield on the Refinancing Securities issued as a refinancing of, or financing in lieu of, the Loans hereunder, together with any outstanding Loans, shall not exceed the Total Cap per annum;
(vii) any such Refinancing Securities shall be issued through a private placement or, at the Borrower’s sole option, a private placement with registration rights;
(viii) the guarantee structure shall be consistent with that provided under this Agreement as in effect at the time of the request;
(ix) all other arrangements with respect to the Refinancing Securities will be as are reasonable and customary for Debt of the type issued and as reasonably specified by the Designated Lead Arrangers in consultation with the Borrower in light of then prevailing market conditions for comparable Debt issuances;
(x) the aggregate amount of proceeds of the Refinancing Securities shall not exceed an amount sufficient to repay the Obligations then outstanding hereunder; and
(xi) the Refinancing Securities will contain such other terms, conditions and covenants as are customary for the type and nature of such Refinancing Securities, in light of then prevailing market conditions, taking into account the Borrower and its subsidiaries’ operational and strategic requirements in light of the Borrower and its subsidiaries’ size, industries, businesses and business practices, operations, financial accounting and projections (in each case, taking into account the consummation of the Acquisition); provided that in no event shall any of such covenants be more restrictive from the perspective of the Borrower and its subsidiaries than the terms hereunderas promptly as practicable.
(b) To assist the Arrangers in a timely completion The Borrower will cause all members of the offering Group, their counsel and their auditors to reasonably assist and facilitate the Manager, in its capacity as underwriter of the Debt Refinancing Securities, the Borrower agreesin completing due diligence, upon the Arrangers’ including providing access to Group personnel, legal and tax advisors and facilities at such reasonable request:times as shall be requested.
(ic) to promptly furnish or cause to be furnished The Borrower will deliver to the Designated Lead Arrangers such Manager, in its capacity as underwriter of the Debt Refinancing Securities, completed printed preliminary offering circulars for the distribution of the Debt Refinancing Securities in a form customary information for offerings underwritten by the Manager, in its capacity as it underwriter of the Debt Refinancing Securities, in the debt and equity, as the case may reasonably request regarding the Borrower be, securities markets suitable to use on a road show. Such offering circulars shall contain all financial statements and the applicable issuer, including all information other data to be included in any offering memorandumtherein (including all audited financial statements, prospectus or other disclosure document as would be customary in a customary offering all unaudited financial statements (which shall have been reviewed by the Auditors and the independent accountants for the applicable type of securities and such other data that would enable the Designated Lead Arrangers, among other things, to obtain customary comfort letters from each of the Borrower’s and its Subsidiaries’’ independent chartered professional accountants (which, for the avoidance of doubt, shall not include financial statements required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, information regarding executive compensation (including under Rule 402(b) of Regulation S-K) or other information customarily excluded from a Rule 144A offering memorandum or prospectusTarget, as applicable; , as provided that customary data as in the accounting standards applicable to the total assetsBorrower in France and the US and the Target in the US) and all appropriate pro forma financial statements) that the Securities and Exchange Commission would require in a registered offering of the Debt Refinancing Securities or that would be necessary for the Manager, revenuein its capacity as underwriter of the Debt Refinancing Securities, EBITDAto receive customary “comfort” (including “negative assurance” comfort, Consolidated Adjusted EBITDA and liabilities of non-guarantor subsidiaries shall be provided);
(iiif available from the Auditors) to make the Borrower’s senior officers and representatives available to, at reasonable times and upon reasonable advance notice by, the Arrangers from independent accountants in connection with the offering of the Debt Refinancing Securities, including making them available not later than 21 days prior to assist the proposed closing date of such offering. The Borrower will deliver completed final offering circulars in accordance with the preparation of one or more Offering Documents (including assistance Manager’s customary market practice in obtaining industry data), to participate in due diligence sessions and to participate in one or more road shows to market the Refinancing Securities;such markets.
(iiid) to prepare as soon as reasonably necessary and practicable upon request, a prospectus or other applicable offering document with respect to the Refinancing Securities (other than a “description of securities”) (provided that the The Borrower shall have used good faith efforts to finalize the “description of securities”) (such document, an “Offering Document”) customary for such a transaction and to assist the Arrangers in preparing other appropriate marketing materials, in each case to be used in connection with the such offering; and
(iv) to use commercially reasonable efforts to will cause the auditors senior management of the Borrower and its Subsidiaries of the issuer of any Debt Refinancing Securities to issue comfort letters with respect participate in road shows for the sale of the Debt Refinancing Securities and other customary marketing efforts at such reasonable times as shall be requested.
(e) Prior to such offeringroad show or road shows, the Borrower will prepare materials for, and participate in, presentations to the appropriate rating agencies to obtain ratings for the Debt Refinancing Securities.
(f) Upon the pricing and the closing of the offering or offerings of Debt Refinancing Securities, the Borrower will cause (i) the Auditors, Target’s auditors and any other required auditors to deliver, in each case, to the Manager, in its capacity as underwriter of the Debt Refinancing Securities and as representative of the several underwriters, a SAS 72 comfort letter or letters, as appropriate, in a form customary for the Manager’s offering of securities in the relevant debt or equity markets and (ii) its legal counsel to deliver customary legal opinions and “10b-5 letters” to the Manager, in its capacity as underwriter of the Debt Refinancing Securities and as representatives of the several underwriters.
(g) The indenture for and the terms and conditions of any high yield Debt Refinancing Securities will be substantially in the form of the indenture for, and terms and conditions of, the Existing Bonds, modified as appropriate to reflect changes in the financial condition and prospects of the Borrower and the Group, prevailing conditions and terms that are customary in the market for high yield debt securities by European issuers, or otherwise in form and substance customary reasonably satisfactory to the Manager and following consultation with the Borrower.
(h) If any US Dollar-denominated Debt Refinancing Securities are issued in a transaction not registered under the Securities Act, such Debt Refinancing Securities shall be entitled to the benefit of a registration rights agreement to be entered into by the issuer of the Debt Refinancing Securities substantially in the form of the registration rights agreement for the applicable type of offeringsExisting Bonds.
(i) The Borrower will use all reasonable efforts to list any high yield Debt Refinancing Securities on the Luxembourg Stock Exchange (or another exchange reasonably satisfactory to the Manager) and to maintain such listing for so long as any such Debt Refinancing Securities are outstanding.
Appears in 1 contract
Refinancing Securities. (a) So long as any Commitments or Loans remain outstanding under this Agreement, at any time and from time to time on or after the [REDACTED – Time Period] and prior to the [REDACTED – Time Period] (but no more than [REDACTED – Commercially Sensitive Information]), the Designated Lead Arrangers, acting collectively, Arrangers may make a proposal to the Borrower, for an offering of Refinancing Securities by the Designated Lead Arrangers in such amounts and on such terms and conditions as specified in the Extended Equity Bridge Debt Securities Demand (as defined in the Fee Letter) all as the Investment Banks (as defined in the Fee Letter) in their reasonable judgment determine in consultation with the Borrower; provided, that each issuance of Refinancing Securities shall be in respect of gross proceeds of a minimum of [REDACTED – Dollar Amount] or, if less, an amount equal to the aggregate principal amount of outstanding Loans; provided, further that:
(i) in connection with any such offering of Refinancing Securities, the Designated Lead Arrangers shall offer to participate in a customary “roadshow” with respect to the applicable Refinancing Securities, which roadshow, for the avoidance of doubt, may occur prior to or following the Closing Date; provided that (x) the Borrower will participate and assist in such roadshow upon the reasonable request of the Designated Lead Arrangers and (y) no such roadshow shall be required to be offered by the Designated Lead Arrangers if the such Designated Lead Arrangers in good faith in consultation with the Borrower determine determines that conducting such roadshow would be commercially futile; and provided further that, neither the commencement nor completion of any such roadshow shall constitute a condition to the availability of the offering or Refinancing Securities;
(ii) the Refinancing Securities shall have a maturity of not shorter than the [REDACTED – Time Period];
(iii) the Refinancing Securities shall be optionally redeemable subject to a non-call period, optional redemption provisions and equity-claw provisions as are, in each case, reasonable and customary make-whole prior to [REDACTED – Time Period] and call premiums equal to [REDACTED – Percentage] for Debt of the coupon on such Refinancing Securities on [REDACTED – Time Period] declining to [REDACTED – Percentage] type issued and as reasonably specified by the Designated Lead Arrangers in consultation with the Borrower in light of the coupon on [REDACTED – Time Period], and [REDACTED – Commercially Sensitive Information] on [REDACTED – Time Period] and thereafterthen prevailing market conditions for comparable Debt issuances;
(iv) prior to [REDACTED – Time Period], [REDACTED – Percentage] of such Refinancing Securities shall be optionally redeemable at par plus the applicable coupon with the proceeds of certain equity offerings;
(i) the issue price of any Refinancing Securities shall not be less than [REDACTED – Percentage] of the principal amount thereof before deducting underwriting fees and commissions and (ii) the interest rate(s) on the Refinancing Securities will be determined by the Designated Lead Arrangers in light of the then prevailing market conditions in consultation with the Borrower, but in no event will the weighted average effective yield (including original issue discount or upfront fees but excluding any underwriting or purchase discount or fees) in respect of any tranche of Refinancing Securities exceed the Total Cap (as defined in the Fee Letter) for such Refinancing Securities by more than [REDACTED – Percentage] per annum;
(viv) at the date of issuance or incurrence, the weighted average total yield on the Refinancing Securities issued as a refinancing of, or financing in lieu of, the Loans hereunder, together with any outstanding Loans, shall not exceed the Total Cap (as defined in the Fee Letter) per annum;
(viivi) any such Refinancing Securities shall be issued through a private placement or, at the Borrower’s sole option, a private placement with registration rights;
(viiivii) the guarantee structure shall be consistent with that provided under this Agreement as in effect at the time of the request;
(ixviii) all other arrangements with respect to the Refinancing Securities will be as are reasonable and customary for Debt of the type issued and as reasonably specified by the Designated Lead Arrangers in consultation with the Borrower in light of then prevailing market conditions for comparable Debt issuances;
(xix) the aggregate amount of proceeds of the Refinancing Securities shall not exceed an amount sufficient to repay the Obligations then outstanding hereunder; and
(xix) the Refinancing Securities will contain such other terms, conditions and covenants as are customary for the type and nature of such Refinancing Securities, in light of then prevailing market conditions, taking into account the Borrower and its subsidiaries’ operational and strategic requirements in light of the Borrower and its subsidiaries’ size, industries, businesses and business practices, operations, financial accounting and projections (in each case, taking into account the consummation of the Acquisition); provided that in no event shall any of such covenants be more restrictive from the perspective of the Borrower and its subsidiaries than the terms hereunder.
(b) To assist the Designated Lead Arrangers in a timely completion of the offering of Refinancing Securities, the Borrower agrees, upon the ArrangersDesignated Lead Designated Leads’ reasonable request:
(i) to promptly furnish or cause to be furnished to the Designated Lead Arrangers such customary information as it may reasonably request regarding the Borrower and the applicable issuer, including all information to be included in any offering memorandum, prospectus or other disclosure document as would be customary in a customary offering for the applicable type of securities and such other data that would enable the Designated Lead Arrangers, among other things, to obtain customary comfort letters from each of the Borrower’s and its Subsidiaries’’ independent chartered professional accountants (which, for the avoidance of doubt, shall not include financial statements required by Rule 3-09, Rule 3-10 or Rule 3-16 of Regulation S-X, information regarding executive compensation (including under Rule 402(b) of Regulation S-K) or other information customarily excluded from a Rule 144A offering memorandum or prospectus, as applicable; provided that customary data as to the total assets, revenue, EBITDA, Consolidated Adjusted EBITDA and liabilities of non-guarantor subsidiaries shall be provided);
(ii) to make the Borrower’s senior officers and representatives available to, at reasonable times and upon reasonable advance notice by, the Designated Lead Arrangers in connection with the offering of Refinancing Securities, including making them available to assist in the preparation of one or more Offering Documents (including assistance in obtaining industry data), to participate in due diligence sessions and to participate in one or more road shows to market the Refinancing Securities;
(iii) to prepare as soon as reasonably necessary and practicable upon request, a prospectus or other applicable offering document with respect to the Refinancing Securities (other than a “description of securities”) (provided that the Borrower shall have used good faith efforts to finalize the “description of securities”) (such document, an “Offering Document”) customary for such a transaction and to assist the Designated Lead Arrangers in preparing other appropriate marketing materials, in each case to be used in connection with the such offering; and
(iv) to use commercially reasonable efforts to cause the auditors of the Borrower and its Subsidiaries to issue comfort letters with respect to such offering, each in form and substance customary for the applicable type of offerings.
Appears in 1 contract
Samples: Two Year Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.)
