Take-Out Financing and Securities Demand. (a) Company shall engage one or more investment banks (the “Investment Banks”) reasonably satisfactory to the Lead Arrangers to endeavor to publicly sell or privately place debt securities of Company denominated in Dollars or Euros (the “Exchange Securities”), the gross proceeds of which will be used to refinance the Bridge Loans. Company shall take such actions as are reasonably necessary so that the Investment Banks can, as soon as reasonably practicable after the date on which a Securities Demand (as defined below) is given, publicly sell or privately place, in one or more offerings or placements, the Exchange Securities specified in the Securities Demand, in each case subject to the terms and conditions hereof. Subject to the other provisions and limitations of this Section 7.15, the Investment Banks, in their reasonable judgment after consultation with Company, shall determine whether, and in what amounts, the Exchange Securities shall be issued by Company, and what type of Exchange Securities or combination of Exchange Securities are to be issued. Company will, and will cause its Subsidiaries to, cooperate with the Investment Banks and use commercially reasonable efforts to cause its advisors and the Target Group and its advisors to do the same, and provide information reasonably deemed necessary by the Investment Banks in connection with placing or selling or obtaining commitments for the purchase or acquisition of the Exchange Securities. Such cooperation will include, without limitation, at the Investment Banks’ reasonable request, commercially reasonable efforts to: (i) prepare, as soon as reasonably practicable, an offering circular, prospectus, private placement memorandum suitable for use in a customary Rule 144A road show relating to the issuance by Company of debt securities with respect to the offer and sale of Exchange Securities; (ii) negotiate and execute an underwriting, placement agency, purchase or other applicable type of agreement containing such terms, covenants, conditions, representations, warranties and indemnities as are customary in similar transactions and providing for the delivery of customary legal opinions, comfort letters, and officers’ certificates; (iii) (A) deliver to the Investment Banks concurrently with, or as part of, the offering circular, prospectus, private placement memorandum or other document referred to above, (x) audited consolidated financial statements of Company and the Target covering the relevant fiscal year period as required pursuant to Regulation S-X, (y) unaudited financial statements of Company and the Target as of and for the interim periods as required pursuant to Regulation S-X, and (z) any pro forma financial statements after giving effect to the Transaction, as may be customary and as reasonably requested by the Investment Banks (if a Rule 144A transaction), and as required pursuant to Regulation S-X (if an SEC-registered transaction) and (B) cause Company’s independent accountants and the independent accountants for the Target to deliver customary “comfort” (including “negative assurance” comfort); (iv) make appropriate officers and representatives of Company, its Subsidiaries and the Target reasonably available to the Investment Banks, upon reasonable notice, for meetings with prospective purchasers of the Exchange Securities; and (v) cooperate with the Investment Banks’ due diligence investigation of Company and the Target and their respective Subsidiaries. (b) At any time and from time to time (but no more than five times) following the 60th day after the Initial Funding Date (subject to clause (ix) of this paragraph (b), the “Period Prior to a Securities Demand”), upon no less than ten Business Days prior notice by the Lead Arrangers holding (together with their affiliates) a majority of the aggregate principal amount of the Bridge Loans under the Bridge Facility as of such time (the “Majority Lead Arrangers”) (each such notice, which, for the avoidance of doubt, can be delivered by the Majority Lead Arrangers prior to such 60th day, a “Securities Demand”), so long as any Bridge Loans are outstanding, Company will cause the issuance and sale of Exchange Securities, in such amounts and on such terms and conditions as are specified in any Securities Demand; provided, however, that: (i) each Securities Demand shall be in respect of not less than $250,000,000 (or its equivalent in Euros) aggregate principal amount of Exchange Securities (or, if less than $250,000,000 (or its equivalent in Euros) aggregate principal amount of Bridge Loans are outstanding, such amount as shall be sufficient to repay in full all outstanding Bridge Loans and all related fees and expenses); (ii) the aggregate amount of proceeds of the Exchange Securities shall not exceed an amount sufficient to repay all the then outstanding principal and other amounts under the Bridge Loans; (iii) the delivery of a Securities Demand shall only be permitted after Company has been afforded the opportunity to participate in one customary “roadshow” (consistent with Company’s past practice); (iv) the Exchange Securities shall be issued through a private placement for resale pursuant to Rule 144A under the Securities Act with registration rights; (v) the Exchange Securities shall contain guarantees, covenants and default provisions substantially similar to those in the Senior Note (2023) Indenture and shall not contain any financial maintenance covenants; (vi) the per annum interest rate on any tranche of Exchange Securities shall not exceed the Total Cap, with original issue discount (other than any original issue discount resulting from a sale by the Investment Banks at a price less than the price paid by the Investment Banks and any fees payable to Investment Banks) considered yield for the purpose of this clause (vi) and determined in accordance with customary market convention); (vii) the Exchange Securities shall have a maturity of no less than eight years; (viii) Company shall not be required to issue any Exchange Securities at an issue price less than 98% of the principal amount thereof (before deducting customary fees and commissions); and (ix) if by the 60th day after the Initial Funding Date, concurrently with, or as part of, the offering circular, prospectus, private placement memorandum or other offering document for the issuance and sale of Exchange Securities, Company, after using its commercially reasonable efforts, is unable to (A) deliver to the Investment Banks (x) audited consolidated financial statements of the Target covering the relevant fiscal year period as required pursuant to Regulation S-X, (y) unaudited financial statements of the Target as of and for the interim periods as required pursuant to Regulation S-X, or (z) any pro forma financial statements after giving effect to the Transaction as required pursuant to Regulation S-X, or (B) cause the independent accountants for the Target to deliver customary “comfort” (including “negative assurance” comfort), then the Period Prior to a Securities Demand shall be extended until the date Company is able to deliver and cause the independent accountants for the Target to deliver the documentation referred to in (A) and (B) above; provided that the Period Prior to a Securities Demand shall not be extended beyond the 90th day after the Initial Funding Date, in each case, unless otherwise agreed by the Investment Banks and Company. (c) Notwithstanding anything to the contrary contained herein, in the event of a Demand Failure, on the Demand Failure Date (A) the interest rate on all Bridge Loans hereunder shall automatically be increased to the Total Cap, (B) the Conversion Fee, if not previously paid, shall become immediately due and payable, (C) the outstanding Bridge Loans shall be subject to the optional redemption terms and call protections applicable to the Exchange Securities and (D) any transfer restrictions applicable to the Bridge Loans shall be removed.
Appears in 3 contracts
Samples: Bridge Loan Agreement (Ball Corp), Bridge Loan Agreement (Ball Corp), Bridge Loan Agreement (Ball Corp)
Take-Out Financing and Securities Demand. (a) Company The Borrower shall engage one or more investment banks (the “Investment Banks”) reasonably satisfactory to the Lead Arrangers Book-Runners to endeavor to publicly sell or privately place debt securities of Company denominated in Dollars or Euros the Borrower (the “Exchange New Securities”) that will yield aggregate gross proceeds of up to U.S. $2,000,000,000 (plus any additional amounts allocated to the Bridge Loan Facility pursuant to the Flex Letter), which gross proceeds shall be used for Certain Funds Purposes if such sale or placement is completed on or prior to the Closing Date (and any gross proceeds thereof shall reduce, on a dollar-for-dollar basis, the aggregate amount of the Commitments hereunder) or, to the extent such sale or placement occurs subsequent to the Closing Date, the gross proceeds of which will be used to refinance the Bridge Loans. Company The Borrower shall take such actions as are reasonably necessary so that the Investment Banks can, as soon as reasonably practicable after the date on which a Securities Demand (as defined below) is given, publicly sell or privately place, in one or more offerings or placementsplacements (and not through a public offering), the Exchange New Securities specified in the Securities Demand, in each case subject to the terms and conditions hereof. Subject to the other provisions and limitations of this Section 7.156.01(19), the Investment Banks, in their reasonable judgment discretion after consultation with Companythe Borrower, shall determine whether, and in what amounts, the Exchange New Securities shall be issued by Companythe Borrower, the amount of each series of New Securities to be issued if the New Securities are to be issued in a series of offerings and/or placements and what type of Exchange New Securities or combination of Exchange New Securities are to be issued. Company The Borrower will, and will cause its Subsidiaries (including after the Closing Date, the Target Group) to, cooperate with the Investment Banks and and, prior to the Closing Date, use commercially reasonable efforts to cause its advisors and have the Target Group and its and their respective advisors to do the samesame (to the extent determined by Borrower to be reasonably practical, permitted and appropriate) and provide information reasonably deemed necessary by the Investment Banks in connection with placing or selling or obtaining commitments for the purchase or acquisition of the Exchange New Securities. Such cooperation will include, without limitation, at the Investment Banks’ reasonable Bank’s request, commercially reasonable efforts to:
(i) prepare, as soon as reasonably practicable, an offering circular, prospectus, private placement memorandum suitable for use in a customary Rule 144A road show relating to the issuance by Company the Borrower of debt securities or other document with respect to the offer and sale of Exchange New Securities;
(ii) negotiate and or execute an underwriting, a placement agency, purchase or other applicable type of agreement containing such terms, covenants, conditions, representations, warranties and indemnities as are customary in similar transactions transactions, subject to the Documentation Standard (taking into account that the New Securities will be secured notes), and providing for the delivery of customary legal opinions, comfort letters, and officers’ certificates, all in form and substance reasonably satisfactory to the Borrower, the Investment Banks and their respective counsel;
(iii) (A) deliver to the Investment Banks concurrently with, or as part of, the offering circular, prospectus, private placement memorandum or other document referred to above, (x) audited consolidated financial statements of Company and the Target covering the relevant fiscal year period as required pursuant to Regulation S-X, (y) unaudited financial statements of Company and the Target as of and for the interim periods as required pursuant to Regulation S-X, and (z) any pro forma financial statements after giving effect to the Transaction, as may be customary and as reasonably requested by the Investment Banks (if a Rule 144A transaction), and as required pursuant to Regulation S-X (if an SEC-registered transaction) and (B) cause Company’s independent accountants and the independent accountants for the Target to deliver customary “comfort” (including “negative assurance” comfort)Required Notes Information;
(iv) make appropriate officers and representatives of Company, the Borrower and its Subsidiaries and the Target reasonably available to the Investment Banks, upon reasonable notice, for meetings with prospective purchasers of the Exchange New Securities; and;
(v) obtain corporate ratings for the New Securities after giving effect to the Transactions from Moody’s and S&P;
(vi) cooperate with the Investment Banks’ Bank’s due diligence investigation of Company the Borrower, its Subsidiaries and the Target Group (in the case of the Target Group, prior to the Closing Date, to the extent determined by Borrower to be reasonably practical, permitted and appropriate), including, without limitation, making appropriate officers and representatives of the Borrower and its Subsidiaries (including their respective Subsidiariesaccountants) reasonably available to the Investment Banks, upon reasonable notice, for customary due diligence sessions and by supplying, to the extent available, due diligence materials and information with respect to the general affairs, management, prospects, financial position, stockholders’ equity and results of operations of the Borrower, its Subsidiaries and the Target Group (in the case of the Target Group, prior to the Closing Date, to the extent determined by Borrower to be reasonably practical, permitted and appropriate); and
(vii) advise the Investment Banks promptly of the occurrence of any event or any other change known to the Borrower or its Subsidiaries that results in any offering circular, private placement memorandum or other document relating to the New Securities containing an untrue statement of a material fact or omitting to state any material fact required to be stated therein or necessary to make the statements contained therein, in light of the circumstances under which they were made, when taken as a whole, not misleading, and to promptly update the offering circular, private placement memorandum or other document in order ensure that it does not contain such untrue statement or omission.
(b) At any time and from time to time (but no more than five times) on or following the 60th day date that is six (6) months after the Initial Funding Date date hereof and after consultation with the Borrower taking into account the availability of financing information and cooperation from the Target (subject to clause (ix) of this paragraph (b)the “Early Demand Date” and any such Securities Demand, the “Period Prior Early Securities Demand”) or five Business Days prior to a the Closing Date until the Bridge Loan Conversion Date (the “Non-Early Demand Date” and any such Securities Demand, the “Non-Early Securities Demand”), upon no less than ten Business Days (or five Business Days with respect to New Securities to be issued on the Closing Date) prior notice by the Lead Arrangers holding (together with their affiliates) a majority Majority of the aggregate principal amount of Book-Runners to the Bridge Loans under the Bridge Facility as of such time Borrower (the “Majority Lead Arrangers”) (each such notice, which, for the avoidance of doubt, can be delivered by the Majority Lead Arrangers prior to such 60th day, a “Securities Demand”), so long as any Commitments or any Bridge Loans are outstandingoutstanding (provided that not more than three Securities Demands may be delivered to the Borrower during such period), Company the Borrower will cause the issuance and sale of Exchange New Securities, in such amounts and on such terms and conditions (including without limitation covenants, events of default, guarantees, currency, interest rates, yield, redemption provisions and maturity date) as are specified in any the Securities Demand; provided, however, that:
that (x) (i) in the case of any Non-Early Securities Demand, no New Securities shall be issued earlier than the Closing Date and (ii) in the case of any Early Securities Demand, such New Securities may, at the option of the Borrower, be issued into escrow on customary terms and subject to customary conditions and, in any case, shall be subject to special mandatory redemption at 100% of the issue price in the event that the Target Acquisition is not consummated and (y) each Securities Demand shall be in respect of not less than a sale of a minimum of U.S. $250,000,000 (or its equivalent in Euros) aggregate principal amount of Exchange New Securities (or, if less than $250,000,000 (or its equivalent in Euros) less, an aggregate principal amount equal to the amount of Bridge Loans are outstanding, such amount as shall be sufficient to repay in full all outstanding Bridge Loans and all related fees and expensesor Commitments), except in the case of this clause (y), with respect to any Securities Demand for the issuance of additional New Securities of the same series or that are issued under an existing indenture governing New Securities; provided, further, that for each issuance of New Securities:
(i) the interest rate on any such issuance shall not exceed the Total Cap (subject to clause (ii) below);
(ii) at the aggregate amount date of proceeds of issuance the Exchange Securities shall not exceed an amount sufficient weighted average total effective yield applicable to repay all the then outstanding principal and other amounts under the Bridge Loans;
(iii) the delivery of a Securities Demand shall only be permitted after Company has been afforded the opportunity to participate in one customary “roadshow” (consistent with Company’s past practice);
(iv) the Exchange any New Securities shall be such that the weighted average total effective yield applicable to (x) the New Securities (including those issued through a private placement for resale pursuant to Rule 144A under the a prior Securities Act with registration rights;
Demand) and (vy) the Exchange Securities shall contain guaranteesLoans, covenants and default provisions substantially similar to those in the Senior Note (2023) Indenture and shall not contain any financial maintenance covenants;
(vi) the per annum interest rate on any tranche of Exchange Securities shall not exceed the Total CapCap (it being understood that any floating interest rates and/or yields included in any of the foregoing calculations shall be determined using a methodology reasonably satisfactory to the Investment Banks, with original issue discount (other than any original issue discount resulting from a sale by the Investment Banks at a price less than the price paid by the Investment Banks and any fees payable to Investment Banks) considered yield for the purpose of this clause (viii) and determined in accordance with customary market convention);
(iii) the issue price of any New Securities shall not be less than 98.0% of the principal amount thereof;
(iv) the New Securities shall be senior secured Permanent Securities of the Borrower with (i) a final maturity date no earlier than the fifth anniversary of the Closing Date and (ii) the call protection shall be high-yield style and the non-call period shall not exceed three years;
(v) the New Securities shall not be subject to any financial maintenance covenants;
(vi) the aggregate amount of proceeds of the New Securities shall not exceed an amount sufficient to repay all the then outstanding principal and other amounts under the Bridge Loans (or, with respect to New Securities issued on the Closing Date in lieu of the Bridge Loans, an amount up to the aggregate principal amount of Commitments, including any increases thereof pursuant to the Flex Letter);
(vii) the Exchange New Securities shall have a maturity of no less than eight yearsbe issued by the Borrower and shall be guaranteed by the Guarantors on terms customary for similar debt securities and consistent with the Documentation Standard;
(viii) Company such Securities Demand shall not only be required permitted after the Borrower shall have participated in, or been afforded an opportunity to issue any Exchange participate in, a customary “roadshow”;
(ix) the New Securities at an issue price less shall contain terms, conditions, covenants and defaults, in each case (other than 98% as provided herein) customary for senior notes, as modified to reflect then-prevailing market conditions as reasonably determined by the Investment Banks, and the financial condition and prospects of the principal amount thereof (before deducting customary fees Borrower and commissions)its Subsidiaries at such time, but in any event shall have the same guarantors as the Bridge Loans and consistent with the Documentation Standard; and
(ix) if by the 60th day after the Initial Funding Date, concurrently with, or as part of, the offering circular, prospectus, private placement memorandum or other offering document for the issuance and sale of Exchange Securities, Company, after using its commercially reasonable efforts, is unable to (A) deliver to the Investment Banks (x) audited consolidated financial statements a customary AHYDO savings clause will be included at the election of the Target covering Borrower if the relevant fiscal year period as required pursuant to Regulation SSecurities are issued with significant original issue discount or paid-X, (y) unaudited financial statements of the Target as of and for the interim periods as required pursuant to Regulation Sin-X, kind interest or (z) any pro forma financial statements after giving effect to the Transaction as required pursuant to Regulation S-X, or (B) cause the independent accountants for the Target to deliver customary “comfort” (including “negative assurance” comfort), then the Period Prior to a Securities Demand shall be extended until the date Company is able to deliver and cause the independent accountants for the Target to deliver the documentation referred to in (A) and (B) abovewould otherwise constitute AHYDO; provided that the Period Prior to a Securities Demand shall not be extended beyond the 90th day after the Initial Funding Date, in each case, unless otherwise agreed by the Investment Banks and Companythe Borrower.
(c) Notwithstanding anything to the contrary contained herein, in the event of a Demand Failure, (A) the Lenders shall have the right to increase the interest rate with respect to the Bridge Loans on the Demand Failure Date (Aand/or any time thereafter) such that the interest rate on all Bridge Loans hereunder shall automatically be increased to the Total CapCap (provided that no Securities shall be required to be issued to repay any Bridge Loans that have become subject to call protection as provided below following a Demand Failure, except to the extent that such call protection has been waived by the applicable Lenders of Bridge Loans), (B) the Conversion Fee, if not previously paid, shall become immediately due and payable, payable upon any such failure to execute a Securities Demand in respect thereof and (C) the outstanding Bridge Loans shall be subject to the optional redemption terms and call protections applicable to the Exchange Securities and (D) any transfer restrictions applicable to the Bridge Loans shall be removed.
(d) As long as any Securities are held by any Investment Bank or any affiliate of an Investment Bank, whether or not a Demand Failure has occurred, such Securities shall be optionally redeemable or purchasable at any time by the Borrower or any of its affiliates at the issue price plus accrued and unpaid interest and accreted OID (and, for the avoidance of doubt, without premium or penalty of any kind). The redemption provisions of the Securities will provide for non-ratable voluntary redemptions of Securities held by each Investment Bank and its affiliates at such prices for so long as such Securities are held by them; provided that such non-ratable voluntary redemption shall, as between such Investment Banks and such affiliates, be made on a pro rata basis.
Appears in 1 contract
Take-Out Financing and Securities Demand. (ai) Company The Borrower shall engage one or more investment banks (the “Investment Banks”) reasonably satisfactory to the Lead Arrangers ArrangerArrangers to endeavor to publicly sell or privately place the New Senior Notes (or other debt securities in lieu thereof), the proceeds of Company denominated which shall be used (except as provided in Dollars Section 5.01(o)(ii)(A) below) for Certain Funds Purposes, to reduce the Commitments or Euros to refinance any Advances (the “Exchange Take-Out Securities”), the gross proceeds of which will be used to refinance the Bridge Loans. Company shall take such actions as are reasonably necessary so that the Investment Banks can, as soon as reasonably practicable after the date on which a Securities Demand (as defined below) is given, publicly sell or privately place, in one or more offerings or placements, the Exchange Securities specified in the Securities Demand, in each case subject to the terms and conditions hereof. Subject to the other provisions and limitations of this Section 7.15, the Investment Banks, in their reasonable judgment after consultation with Company, shall determine whether, and in what amounts, the Exchange Securities shall be issued by Company, and what type of Exchange Securities or combination of Exchange Securities are to be issued. Company The Borrower will, and will cause its Subsidiaries to, cooperate with the Investment Banks and use commercially reasonable best efforts to cause its advisors and the Target Group and its advisors to do the same, and will provide information reasonably deemed necessary by the Investment Banks in connection with placing or selling or obtaining commitments for the purchase or acquisition of the Exchange Take-Out Securities. Such cooperation will include, without limitation, at the Investment Banks’ reasonable request, commercially reasonable efforts to:
(iA) preparepreparation, as soon as reasonably practicablepracticable after such reasonable request, of an offering circular, prospectus, circular or private placement memorandum suitable for use in a customary Rule 144A road show relating to the issuance by Company of debt securities with respect to the offer and sale of Exchange SecuritiesTake-Out Securities containing all customary information (other than a “description of notes” and other information customarily provided by underwriters or their counsel), including historical financial statements, pro forma financial statements and business and other financial data of the type and form that are customarily included in Rule 144A offering circulars for similar debt securities;
(iiB) negotiate negotiation and execute an underwriting, execution of a placement agency, purchase or other applicable type of agreement containing such terms, covenants, conditions, representations, warranties and indemnities as are customary in similar transactions and providing for the delivery of customary legal opinions, comfort letters, letters and officers’ certificates;
(iiiC) (Ai) deliver delivery to the Investment Banks concurrently with, or as part of, the offering circular, prospectus, circular or private placement memorandum or other document referred to above, (x) audited consolidated financial statements of Company and the Target Borrower covering the relevant fiscal year period as required pursuant to Regulation S-XX (and causing the Target to deliver such financial statements of the Target), (y) unaudited financial statements of Company and the Target Borrower as of and for the interim periods as required pursuant to Regulation S-X, X (and causing the Target to deliver such financial statements of the Target) and (z) any pro forma financial statements after giving effect to the TransactionTransactions (and any other transactions, if any, as would customarily be reflected therein), as may be customary and as reasonably requested by the Investment Banks (if a Rule 144A transaction), and or as required pursuant to Regulation S-X (if an SEC-registered transaction) and (Bii) cause Companycausing the Borrower’s independent accountants (and the independent accountants for causing the Target to cause its independent accountants) to deliver customary “comfort” (including customary “negative assurance” comfort);
(ivD) make making appropriate officers and representatives of Company, its Subsidiaries the Borrower and the Target reasonably available to the Investment Banks, upon reasonable notice, for meetings with prospective purchasers of the Exchange Take-Out Securities; and
(vE) cooperate cooperating with the Investment Banks’ due diligence investigation of Company the Borrower and the Target and their respective Subsidiaries.
(bii) At Upon written notice delivered by the ArrangerArrangers to the Borrower at any time on or following the tenth Business Day prior to, and from time on or prior to time the fifth Business Day prior to, (x) the Closing Date (a “Closing Date Securities Demand”), (y) if the Closing Date has not yet occurred, April 1, 2016 (an “Escrow Securities Demand”), and/or (z) on any date (but no more than five timesone time) following the 60th day after the Initial Funding Closing Date (subject to clause (ix) of this paragraph (b)such date, the “Period Prior to Post-Closing Demand Issuance Date”) (a “Post-Closing Securities Demand”), upon no less than ten Business Days prior notice by the Lead Arrangers holding (together with their affiliates) and any of a majority of the aggregate principal amount of the Bridge Loans under the Bridge Facility as of such time (the “Majority Lead Arrangers”) (each such noticeClosing Date Securities Demand, which, for the avoidance of doubt, can be delivered by the Majority Lead Arrangers prior to such 60th dayan Escrow Securities Demand and a Post-Closing Securities Demand, a “Securities Demand”), so long as any Bridge Loans are outstanding, Company the Borrower will cause the issuance and sale of Exchange Take-Out Securities on the Closing Date, April 1, 2016 or the Post-Closing Demand Issuance Date, as applicable (such Take-Out Securities, the “Demand Securities”), in such amounts and on such terms and conditions as are specified in any the applicable Securities Demand; provided that the Borrower may, in its discretion, decline to issue Demand Securities pursuant to an Escrow Securities Demand (provided that the Borrower complies with the provisions to Section 2.06); and provided, howeverfurther, that:
(A) (i) each the net cash proceeds of any Demand Securities issued pursuant to an Escrow Securities Demand (if issued) shall be funded into an Escrow Account reasonably satisfactory to the ArrangerArrangers and the Financial Adviser (it being understood that such escrow arrangements shall allow amounts deposited in respect the Escrow Account in excess of not less than $250,000,000 (or its equivalent in Euros) aggregate principal the amount of Exchange Securities (orrequired for Certain Funds Purposes to be returned to the Borrower upon release from escrow), if less than $250,000,000 (or its equivalent in Euros) aggregate principal amount of Bridge Loans are outstanding, such amount as shall be sufficient to repay in full all outstanding Bridge Loans and all related fees and expenses);
(ii) the aggregate amount of net cash proceeds of any Demand Securities issued pursuant to Closing Date Securities Demand (if issued) will be used for Certain Funds Purposes and (iii) the Exchange net cash proceeds of any Demand Securities issued pursuant to a Post-Closing Securities Demand (if issued) will be used for Certain Funds Purposes or to repay any outstanding Advances;
(B) either (I) if such Demand Securities are fungible with (including having a CUSIP number identical to) a tranche of the Existing Notes, the Sterling Equivalent (determined as of the date of delivery of such Securities Demand) of the net cash proceeds of such Demand Securities shall not exceed an amount (together with the net cash proceeds of all other Demand Securities) sufficient to repay reduce all the then outstanding Commitments or (II) such Demand Securities must be issued in a minimum aggregate principal and amount of $200,000,000 or such greater amount so long as the Sterling Equivalent (determined as of the close of business on the Business Day immediately prior to the date of issuance of such Demand Securities) of the net cash proceeds of such Demand Securities shall not exceed an amount (together with the net cash proceeds of all other amounts under Demand Securities) sufficient to reduce all the Bridge Loansthen outstanding Commitments (it being understood that the full amount of the Demand Securities shall be denominated in Dollars, unless otherwise agreed by the Borrower);
(iiiC) the delivery of a the Securities Demand shall only be permitted after Company the Borrower has been afforded the opportunity to participate in one customary “roadshow” (consistent with Companythe Borrower’s past practice);
(ivD) the Exchange Demand Securities shall be issued through a private placement for resale pursuant to Rule 144A under the Securities Act with registration rights;
(vE) the Exchange Demand Securities shall be unsecured and contain guarantees(except as otherwise expressly provided in this Agreement) terms, covenants conditions, covenants, guarantees and default provisions defaults substantially similar to those consistent with the terms, conditions, covenants, guarantees and defaults contained in the indenture relating to the 5.750% Senior Note (2023) Indenture and shall not contain any financial maintenance covenantsNotes Due 2025;
(viF) the per annum interest rate on any tranche of Exchange Demand Securities shall not exceed the Total CapCap (as determined at the close of business on the Business Day immediately preceding the date of the applicable Securities Demand; provided that so long as a Demand Failure of the type contemplated by clause (ii) of the definition thereof has not occurred, with respect to any Post-Closing Securities Demand, the Total Cap with respect thereto shall be determined as of the close of business on the Closing Date), with original issue discount (other than any original issue discount resulting from a sale by the Investment Banks at a price less than the price paid by the Investment Banks and any fees payable to Investment Banks) considered yield for the purpose of this clause (viF) and determined in accordance with customary market convention);
(viiG) the Exchange Demand Securities shall have a maturity of no less than eight yearsseven years from the Closing Date;
(viiiH) Company no Demand Securities pursuant to a Closing Date Securities Demand or a Post-Closing Securities Demand shall be required to be issued prior to the Closing Date;
(I) (i) if the Demand Securities have a maturity of eight years from the Closing Date, then the Demand Securities shall be non-callable for no longer than the first four years after the Closing Date and will be callable thereafter at par, plus accrued interest and a premium equal to 50% of the coupon in effect on the date the coupon was fixed, which premium shall decline ratably on each yearly anniversary of the Closing Date to zero one year prior to the maturity date of such Demand Securities; provided that, if such Demand Securities are non-callable for only the first three years after the Closing Date, such Demand Securities will be callable at par, plus accrued interest and a premium equal to 75% of the coupon in effect on the date the coupon was fixed, which premium shall decline ratably on each yearly anniversary of the Closing Date to zero one year prior to the maturity date of such Demand Securities, and (ii) if the Demand Securities have a maturity of seven years from the Closing Date, then the Demand Securities shall be non-callable for no longer than the first three years after the Closing Date and will be callable thereafter at par, plus accrued interest and a premium equal to 75% of the coupon in effect on the date the coupon was fixed, which premium shall decline ratably on each yearly anniversary of the Closing Date to zero one year prior to the maturity date of such Demand Securities;
(J) the Borrower shall not be required to issue any Exchange Demand Securities at an issue price less than 98% of the principal amount thereof (before deducting customary fees and commissions);
(K) the Borrower shall not be required to issue any Demand Securities or undertake any action in connection therewith that would cause the Borrower to violate or be in breach of the terms of its Existing Credit Agreement or the indentures governing any of its Existing Notes (and may, in order to ensure such compliance in connection with any Demand Securities the net cash proceeds of which are to be placed in an Escrow Account as set forth above, cause an “unrestricted subsidiary” thereof to issue such Demand Securities (with the Borrower to assume all obligations thereunder upon release of such net cash proceeds from such Escrow Account)); and
(ixL) if by the 60th day after Borrower will, and will cause its Subsidiaries to, and will cause its advisors and the Initial Funding DateTarget and its advisors to, concurrently with, or as part of, provide the offering circular, prospectus, private placement memorandum or other offering document for the issuance cooperation and sale of Exchange Securities, Company, after using its commercially reasonable efforts, is unable to assistance described in clauses (A) deliver through (E) of Section 5.01(o)(i) in respect of the Demand Securities, or, if any such documentation or assistance had previously been provided in respect of Take-Out Securities, cooperate in updating such documentation, in each case as reasonably deemed necessary by the ArrangerArrangers in connection with placing or selling or obtaining commitments for the purchase or acquisition of the Demand Securities (and the placement agency, purchase or other applicable agreement relating to such Demand Securities (but not the indenture) will contain a covenant to the Investment Banks effect of this clause (x) audited consolidated financial statements of the Target covering the relevant fiscal year period as required pursuant to Regulation S-X, (y) unaudited financial statements of the Target as of and for the interim periods as required pursuant to Regulation S-X, or (z) any pro forma financial statements after giving effect to the Transaction as required pursuant to Regulation S-X, or (B) cause the independent accountants for the Target to deliver customary “comfort” (including “negative assurance” comfortL), then the Period Prior to a Securities Demand shall be extended until the date Company is able to deliver and cause the independent accountants for the Target to deliver the documentation referred to in (A) and (B) above; provided that the Period Prior to a Securities Demand shall not be extended beyond the 90th day after the Initial Funding Date, ). in each case, unless otherwise agreed by the Investment Banks ArrangerArrangers and Companythe Borrower.
(ciii) Notwithstanding anything to the contrary contained herein, in In the event of a Demand Failure, on the Demand Failure Date (A) the interest rate on all Bridge Loans Advances hereunder shall automatically be increased to the Total CapCap determined as of the close of business on the Business Day immediately prior to the Demand Failure Date (and thereafter determined in accordance with Section 2.08(a)), (B) the Conversion Fee, if not previously paid, shall become immediately due and payablepayable (but no earlier than the Closing or, if later, immediately following the end of the Certain Funds Period), (C) the outstanding Bridge Loans Advances shall be subject to the optional redemption terms and call protections protection provisions applicable to the Exchange Securities Notes and (D) any transfer restrictions applicable obligation to obtain the consent of the Borrower shall be inapplicable to transfers of the Advances or Commitments, as applicable, to any Person (i) with the consent of the Financial Adviser or (ii) that has both a long term issuer rating and a short term issuer rating from each of Xxxxx’x and S&P that is equal to or better than the long term issuer rating and short term issuer rating of X.X. Xxxxxx Securities LLC from each of Xxxxx’x and S&P. Notwithstanding anything to the Bridge Loans contrary contained herein, it is agreed and understood that (1) the occurrence of a Demand Failure of the type contemplated by clause (ii) of the definition thereof shall not constitute a Default or an Event of Default and (2) the remedies set forth in the immediately preceding sentence and in Section 2.07(b) shall be removedthe sole and exclusive remedies in the event of such Demand Failure.
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Take-Out Financing and Securities Demand. (ai) Company The Borrower shall engage one or more investment banks (the “Investment Banks”) reasonably satisfactory to the Lead Arrangers Arranger to endeavor to publicly sell or privately place the New Senior Notes (or other debt securities in lieu thereof), the proceeds of Company denominated which shall be used (except as provided in Dollars Section 5.01(o)(ii)(A) below) for Certain Funds Purposes, to reduce the Commitments or Euros to refinance any Advances (the “Exchange Take-Out Securities”), the gross proceeds of which will be used to refinance the Bridge Loans. Company shall take such actions as are reasonably necessary so that the Investment Banks can, as soon as reasonably practicable after the date on which a Securities Demand (as defined below) is given, publicly sell or privately place, in one or more offerings or placements, the Exchange Securities specified in the Securities Demand, in each case subject to the terms and conditions hereof. Subject to the other provisions and limitations of this Section 7.15, the Investment Banks, in their reasonable judgment after consultation with Company, shall determine whether, and in what amounts, the Exchange Securities shall be issued by Company, and what type of Exchange Securities or combination of Exchange Securities are to be issued. Company The Borrower will, and will cause its Subsidiaries to, cooperate with the Investment Banks and use commercially reasonable best efforts to cause its advisors and the Target Group and its advisors to do the same, and will provide information reasonably deemed necessary by the Investment Banks in connection with placing or selling or obtaining commitments for the purchase or acquisition of the Exchange Take-Out Securities. Such cooperation will include, without limitation, at the Investment Banks’ reasonable request, commercially reasonable efforts to:
(iA) preparepreparation, as soon as reasonably practicablepracticable after such reasonable request, of an offering circular, prospectus, circular or private placement memorandum suitable for use in a customary Rule 144A road show relating to the issuance by Company of debt securities with respect to the offer and sale of Exchange SecuritiesTake-Out Securities containing all customary information (other than a “description of notes” and other information customarily provided by underwriters or their counsel), including historical financial statements, pro forma financial statements and business and other financial data of the type and form that are customarily included in Rule 144A offering circulars for similar debt securities;
(iiB) negotiate negotiation and execute an underwriting, execution of a placement agency, purchase or other applicable type of agreement containing such terms, covenants, conditions, representations, warranties and indemnities as are customary in similar transactions and providing for the delivery of customary legal opinions, comfort letters, letters and officers’ certificates;
(iiiC) (Ai) deliver delivery to the Investment Banks concurrently with, or as part of, the offering circular, prospectus, circular or private placement memorandum or other document referred to above, (x) audited consolidated financial statements of Company and the Target Borrower covering the relevant fiscal year period as required pursuant to Regulation S-XX (and causing the Target to deliver such financial statements of the Target), (y) unaudited financial statements of Company and the Target Borrower as of and for the interim periods as required pursuant to Regulation S-X, X (and causing the Target to deliver such financial statements of the Target) and (z) any pro forma financial statements after giving effect to the TransactionTransactions (and any other transactions, if any, as would customarily be reflected therein), as may be customary and as reasonably requested by the Investment Banks (if a Rule 144A transaction), and or as required pursuant to Regulation S-X (if an SEC-registered transaction) and (Bii) cause Companycausing the Borrower’s independent accountants (and the independent accountants for causing the Target to cause its independent accountants) to deliver customary “comfort” (including customary “negative assurance” comfort);
(ivD) make making appropriate officers and representatives of Company, its Subsidiaries the Borrower and the Target reasonably available to the Investment Banks, upon reasonable notice, for meetings with prospective purchasers of the Exchange Take-Out Securities; and
(vE) cooperate cooperating with the Investment Banks’ due diligence investigation of Company the Borrower and the Target and their respective Subsidiaries.
(bii) At Upon written notice delivered by the Arranger to the Borrower at any time on or following the tenth Business Day prior to, and from time on or prior to time the fifth Business Day prior to, (x) the Closing Date (a “Closing Date Securities Demand”), (y) if the Closing Date has not yet occurred, April 1, 2016 (an “Escrow Securities Demand”), and/or (z) on any date (but no more than five timesone time) following the 60th day after the Initial Funding Closing Date (subject to clause (ix) of this paragraph (b)such date, the “Period Prior to Post-Closing Demand Issuance Date”) (a “Post-Closing Securities Demand”), upon no less than ten Business Days prior notice by the Lead Arrangers holding (together with their affiliates) and any of a majority of the aggregate principal amount of the Bridge Loans under the Bridge Facility as of such time (the “Majority Lead Arrangers”) (each such noticeClosing Date Securities Demand, which, for the avoidance of doubt, can be delivered by the Majority Lead Arrangers prior to such 60th dayan Escrow Securities Demand and a Post-Closing Securities Demand, a “Securities Demand”), so long as any Bridge Loans are outstanding, Company the Borrower will cause the issuance and sale of Exchange Take-Out Securities on the Closing Date, April 1, 2016 or the Post-Closing Demand Issuance Date, as applicable (such Take-Out Securities, the “Demand Securities”), in such amounts and on such terms and conditions as are specified in any the applicable Securities Demand; provided that the Borrower may, in its discretion, decline to issue Demand Securities pursuant to an Escrow Securities Demand (provided that the Borrower complies with the provisions to Section 2.06); and provided, howeverfurther, that:
(A) (i) each the net cash proceeds of any Demand Securities issued pursuant to an Escrow Securities Demand (if issued) shall be funded into an Escrow Account reasonably satisfactory to the Arranger and the Financial Adviser (it being understood that such escrow arrangements shall allow amounts deposited in respect the Escrow Account in excess of not less than $250,000,000 (or its equivalent in Euros) aggregate principal the amount of Exchange Securities (orrequired for Certain Funds Purposes to be returned to the Borrower upon release from escrow), if less than $250,000,000 (or its equivalent in Euros) aggregate principal amount of Bridge Loans are outstanding, such amount as shall be sufficient to repay in full all outstanding Bridge Loans and all related fees and expenses);
(ii) the aggregate amount of net cash proceeds of any Demand Securities issued pursuant to Closing Date Securities Demand (if issued) will be used for Certain Funds Purposes and (iii) the Exchange net cash proceeds of any Demand Securities issued pursuant to a Post-Closing Securities Demand (if issued) will be used for Certain Funds Purposes or to repay any outstanding Advances;
(B) either (I) if such Demand Securities are fungible with (including having a CUSIP number identical to) a tranche of the Existing Notes, the Sterling Equivalent (determined as of the date of delivery of such Securities Demand) of the net cash proceeds of such Demand Securities shall not exceed an amount (together with the net cash proceeds of all other Demand Securities) sufficient to repay reduce all the then outstanding Commitments or (II) such Demand Securities must be issued in a minimum aggregate principal and amount of $200,000,000 or such greater amount so long as the Sterling Equivalent (determined as of the close of business on the Business Day immediately prior to the date of issuance of such Demand Securities) of the net cash proceeds of such Demand Securities shall not exceed an amount (together with the net cash proceeds of all other amounts under Demand Securities) sufficient to reduce all the Bridge Loansthen outstanding Commitments (it being understood that the full amount of the Demand Securities shall be denominated in Dollars, unless otherwise agreed by the Borrower);
(iiiC) the delivery of a the Securities Demand shall only be permitted after Company the Borrower has been afforded the opportunity to participate in one customary “roadshow” (consistent with Companythe Borrower’s past practice);
(ivD) the Exchange Demand Securities shall be issued through a private placement for resale pursuant to Rule 144A under the Securities Act with registration rights;
(vE) the Exchange Demand Securities shall be unsecured and contain guarantees(except as otherwise expressly provided in this Agreement) terms, covenants conditions, covenants, guarantees and default provisions defaults substantially similar to those consistent with the terms, conditions, covenants, guarantees and defaults contained in the indenture relating to the 5.750% Senior Note (2023) Indenture and shall not contain any financial maintenance covenantsNotes Due 2025;
(viF) the per annum interest rate on any tranche of Exchange Demand Securities shall not exceed the Total CapCap (as determined at the close of business on the Business Day immediately preceding the date of the applicable Securities Demand; provided that so long as a Demand Failure of the type contemplated by clause (ii) of the definition thereof has not occurred, with respect to any Post-Closing Securities Demand, the Total Cap with respect thereto shall be determined as of the close of business on the Closing Date), with original issue discount (other than any original issue discount resulting from a sale by the Investment Banks at a price less than the price paid by the Investment Banks and any fees payable to Investment Banks) considered yield for the purpose of this clause (viF) and determined in accordance with customary market convention);
(viiG) the Exchange Demand Securities shall have a maturity of no less than eight yearsseven years from the Closing Date;
(viiiH) Company no Demand Securities pursuant to a Closing Date Securities Demand or a Post-Closing Securities Demand shall be required to be issued prior to the Closing Date;
(I) (i) if the Demand Securities have a maturity of eight years from the Closing Date, then the Demand Securities shall be non-callable for no longer than the first four years after the Closing Date and will be callable thereafter at par, plus accrued interest and a premium equal to 50% of the coupon in effect on the date the coupon was fixed, which premium shall decline ratably on each yearly anniversary of the Closing Date to zero one year prior to the maturity date of such Demand Securities; provided that, if such Demand Securities are non-callable for only the first three years after the Closing Date, such Demand Securities will be callable at par, plus accrued interest and a premium equal to 75% of the coupon in effect on the date the coupon was fixed, which premium shall decline ratably on each yearly anniversary of the Closing Date to zero one year prior to the maturity date of such Demand Securities, and (ii) if the Demand Securities have a maturity of seven years from the Closing Date, then the Demand Securities shall be non-callable for no longer than the first three years after the Closing Date and will be callable thereafter at par, plus accrued interest and a premium equal to 75% of the coupon in effect on the date the coupon was fixed, which premium shall decline ratably on each yearly anniversary of the Closing Date to zero one year prior to the maturity date of such Demand Securities;
(J) the Borrower shall not be required to issue any Exchange Demand Securities at an issue price less than 98% of the principal amount thereof (before deducting customary fees and commissions);
(K) the Borrower shall not be required to issue any Demand Securities or undertake any action in connection therewith that would cause the Borrower to violate or be in breach of the terms of its Existing Credit Agreement or the indentures governing any of its Existing Notes (and may, in order to ensure such compliance in connection with any Demand Securities the net cash proceeds of which are to be placed in an Escrow Account as set forth above, cause an “unrestricted subsidiary” thereof to issue such Demand Securities (with the Borrower to assume all obligations thereunder upon release of such net cash proceeds from such Escrow Account)); and
(ixL) if by the 60th day after Borrower will, and will cause its Subsidiaries to, and will cause its advisors and the Initial Funding DateTarget and its advisors to, concurrently with, or as part of, provide the offering circular, prospectus, private placement memorandum or other offering document for the issuance cooperation and sale of Exchange Securities, Company, after using its commercially reasonable efforts, is unable to assistance described in clauses (A) deliver through (E) of Section 5.01(o)(i) in respect of the Demand Securities, or, if any such documentation or assistance had previously been provided in respect of Take-Out Securities, cooperate in updating such documentation, in each case as reasonably deemed necessary by the Arranger in connection with placing or selling or obtaining commitments for the purchase or acquisition of the Demand Securities (and the placement agency, purchase or other applicable agreement relating to such Demand Securities (but not the indenture) will contain a covenant to the Investment Banks effect of this clause (x) audited consolidated financial statements of the Target covering the relevant fiscal year period as required pursuant to Regulation S-X, (y) unaudited financial statements of the Target as of and for the interim periods as required pursuant to Regulation S-X, or (z) any pro forma financial statements after giving effect to the Transaction as required pursuant to Regulation S-X, or (B) cause the independent accountants for the Target to deliver customary “comfort” (including “negative assurance” comfortL), then the Period Prior to a Securities Demand shall be extended until the date Company is able to deliver and cause the independent accountants for the Target to deliver the documentation referred to in (A) and (B) above; provided that the Period Prior to a Securities Demand shall not be extended beyond the 90th day after the Initial Funding Date, ). in each case, unless otherwise agreed by the Investment Banks Arranger and Companythe Borrower.
(ciii) Notwithstanding anything to the contrary contained herein, in In the event of a Demand Failure, on the Demand Failure Date (A) the interest rate on all Bridge Loans Advances hereunder shall automatically be increased to the Total CapCap determined as of the close of business on the Business Day immediately prior to the Demand Failure Date (and thereafter determined in accordance with Section 2.08(a)), (B) the Conversion Fee, if not previously paid, shall become immediately due and payablepayable (but no earlier than the Closing or, if later, immediately following the end of the Certain Funds Period), (C) the outstanding Bridge Loans Advances shall be subject to the optional redemption terms and call protections protection provisions applicable to the Exchange Securities Notes and (D) any transfer restrictions applicable obligation to obtain the consent of the Borrower shall be inapplicable to transfers of the Advances or Commitments, as applicable, to any Person (i) with the consent of the Financial Adviser or (ii) that has both a long term issuer rating and a short term issuer rating from each of Xxxxx’x and S&P that is equal to or better than the long term issuer rating and short term issuer rating of X.X. Xxxxxx Securities LLC from each of Xxxxx’x and S&P. Notwithstanding anything to the Bridge Loans contrary contained herein, it is agreed and understood that (1) the occurrence of a Demand Failure of the type contemplated by clause (ii) of the definition thereof shall not constitute a Default or an Event of Default and (2) the remedies set forth in the immediately preceding sentence and in Section 2.07(b) shall be removedthe sole and exclusive remedies in the event of such Demand Failure.
Appears in 1 contract
