Treatment of Company Indebtedness. The Company shall, and shall cause the Company Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on the Closing Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent at least two business days prior to the Closing Date, and shall deliver to Parent on or prior to the Closing Date, an executed payoff letter with respect to the Company Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement), in no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit Agreement.
Appears in 2 contracts
Samples: Merger Agreement (First Advantage Corp), Merger Agreement (Sterling Check Corp.)
Treatment of Company Indebtedness. The (a) If requested by Buyer in writing, Company shall, and shall cause the Company its Subsidiaries to, deliver all notices and take all other actions documents reasonably requested by Parent Buyer that are required to, in accordance with to cause and evidence the terms thereof, terminate termination of all commitments outstanding under the Company Credit Agreement, repay the repayment in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, guarantees in connection therewith, in each case, therewith on the Closing Date as of the Effective Time (such notices, documents, termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company its Subsidiaries to, use reasonable best efforts to deliver to Parent at least two business days Buyer prior to the Closing Date, and shall deliver to Parent on or prior to the Closing Date, Date an executed payoff letter with respect to the Company Credit Agreement (the a “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, Letter shall include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company its Subsidiaries securing such Indebtedness indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing DateDate as of the Effective Time, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory Notwithstanding anything herein to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement)contrary, in no event shall this Section 7.14 5.23 require the Company or any of the Company its Subsidiaries to cause the Credit Facility Terminations to be consummated effective unless and until the Effective Time has occurred and Parent Buyer has provided or caused to be provided to the Company or the Company its Subsidiaries funds (or Parent Buyer has directed the Company or any of the Company its Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of amount, and accrued and unpaid interest and fees outstanding, under the Company Credit Agreement.
(b) If requested by the Buyer in writing, to the extent Buyer elects to prepay, redeem, terminate or otherwise discharge any of Company’s Senior Notes, at or after the Effective Time, including in connection with an exchange offer pursuant to which the consideration for the Senior Notes will include new securities to be issued by Buyer and/or one or more of Buyer’s Subsidiaries, Company shall, and shall cause its Subsidiaries to, use its reasonable best efforts to assist Buyer, at Buyer’s request and expense, in (x) facilitating and instructing the Trustee to cooperate with the discharge of the Senior Notes at the Closing, if applicable and (y) delivering or instructing the Trustee to deliver applicable redemption notices, provided that any such notices shall (i) comply with applicable Law and with the Senior Notes Indenture, (ii) to the extent any such documentation is delivered before the Closing, expressly provide that any refinancing of the Senior Notes shall be conditioned on the occurrence of the Closing, and (iii) otherwise be in form and substance reasonably satisfactory to each of Company and Buyer.
Appears in 2 contracts
Samples: Transaction Agreement (Borgwarner Inc), Transaction Agreement (Delphi Technologies PLC)
Treatment of Company Indebtedness. (a) The Company shall, as soon as reasonably practicable after Parent so requests in writing, issue, or use its reasonable best efforts to cause the Trustee (as defined below) to issue, a notice of optional redemption for some or all (which amount shall be specified in Parent’s written request) of the outstanding aggregate principal amount of VWR Funding, Inc.’s 4.625% Senior Notes due 2022 (the “Existing Notes”), to the extent permitted by and pursuant to the requisite provisions of the indenture (the “Indenture”) governing the Existing Notes, dated as of March 25, 2015, among VWR Funding, Inc., the guarantors party thereto, Law Debenture Trust Company of New York, as trustee (the “Trustee”), Deutsche Bank AG, London Branch, as paying agent (the “Notes Paying Agent”) and Deutsche Bank Luxembourg S.A., as registrar and transfer agent; provided that such notice of optional redemption shall be conditioned upon one or more conditions precedent, including, but not limited to, the occurrence of the Merger Closing. The Company shall provide Parent with a reasonable opportunity to review and comment on drafts of the definitive documentation for any such redemption. The Company agrees to assist Parent upon reasonable request in making arrangements for redemption, defeasance, satisfaction and/or discharge of the Existing Notes pursuant to the Indenture and shall cause timely provide the Company Subsidiaries toTrustee with such officers’ certificates, deliver all notices legal opinions and take all other actions documentation required by the Indenture or reasonably requested by Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, Trustee in connection therewith. On or prior to any applicable redemption date, in each caseor if applicable, on date of satisfaction and discharge, Parent shall deposit or cause to be deposited funds with the Closing Date Trustee sufficient to effect such redemption and/or satisfaction and discharge, as of the Effective Time (such terminationapplicable, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with as required pursuant to the terms of the Company Credit Agreement if Indenture (and in the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation event of any delay of the foregoinganticipated Effective Time, Parent shall deposit additional funds with the Company shallTrustee sufficient to satisfy such redemption, and shall cause the Company Subsidiaries tosatisfaction, use reasonable best efforts discharge and/or defeasance, as applicable, as required pursuant to deliver to Parent at least two business days prior to the Closing Date, and shall deliver to Parent on or prior to the Closing Date, an executed payoff letter with respect to the Company Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Indenture); provided that the release of any such funds shall be subject to the occurrence of the Effective Time. Parent shall promptly, upon request by the Company, reimburse the Company Credit Agreement), in no event shall this Section 7.14 require for all out-of-pocket costs and expenses (including attorneys’ fees) incurred by the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless Subsidiaries, as applicable, in connection with this Section 5.16(a).
(b) Parent shall indemnify and until the Effective Time has occurred and Parent has provided or caused to be provided to hold harmless the Company or and the Company Subsidiaries funds (and their respective Representatives from and against any and all liabilities and damages suffered or incurred by them in connection with any actions taken pursuant to this Section 5.16; provided, however, that Parent has directed shall not have any obligation to indemnify and hold harmless any such party or person to the Company extent any such liabilities or any damages suffered or incurred arose out of or result from the fraud or intentional misrepresentation of the Company, the Company Subsidiaries to use funds on or their balance sheet) to pay in full the then-outstanding principal amount of respective affiliates and accrued and unpaid interest and fees under the Company Credit AgreementRepresentatives.
Appears in 2 contracts
Samples: Merger Agreement (Avantor, Inc.), Merger Agreement (VWR Corp)
Treatment of Company Indebtedness. The Company shallUpon request of Parent, and shall cause the Company and its Subsidiaries to, deliver all notices and shall use its commercially reasonable efforts to take all other any actions reasonably requested by Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and necessary to facilitate the release of all Liens, if any, securing such obligations, and payoff (to the release of all guarantees, if any, in connection therewith, in each case, on the Closing Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with extent permitted by the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation applicable instrument) by Parent of the foregoingIndebtedness pursuant to (a) the Second Amended and Restated Credit Agreement, by and among JMP Group Inc., the Company shalllenders party thereto and City National Bank, as administrative agent, dated as of April 30, 2014, as amended, (b) the Revolving Note and Cash Subordination Agreement, by and between City National Bank and JMP Securities LLC, dated as of April 8, 2011, as amended, (c) the Indenture between JMP Group Inc. and U.S. Bank National Association, as trustee, dated as of January 24, 2013, as supplemented, and shall cause (d) the Indenture between the Company Subsidiaries toand U.S. Bank National Association, use reasonable best efforts to deliver as trustee, dated as of September 26, 2019, as supplemented, including by obtaining a payoff letter in customary form and substance from the agent or other applicable party under each such debt instrument (and delivering a draft of each such payoff letter to Parent at least not less than two business days (2) Business Days prior to the Closing Date, and shall deliver to Parent on Closing) setting forth (i) the amount that must be paid in satisfaction or prior to the Closing Date, an executed payoff letter with respect to the Company Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions discharge of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf indebtedness, (ii) wire instructions for payment and (iii) assurances that upon payment of the Persons to whom such Indebtedness is owedamounts specified therein, (the “Financing Agent”)all outstanding indebtedness, which Payoff Letters together with any related release documentation shall, among liabilities or other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties obligations of the Company and its Subsidiaries under such debt instrument (other than contingent obligations for which no demand has been made and other liabilities which by their terms survive the Company Subsidiaries termination of the applicable agreements) shall have been paid and discharged in full and that any and all Liens securing such Indebtedness obligations shall be released, together with any termination statements on Form UCC-3 or other releases reasonably necessary to evidence the satisfaction and release of any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter Liens on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms assets of the Company Credit Agreement), or its Subsidiaries arising in no event connection therewith; it being understood that Parent shall this Section 7.14 require the Company provide all funds required (or any shall use funds of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheetSurviving Company) to pay in full the then-outstanding principal amount of actually effect such payoff and accrued and unpaid interest and fees under the Company Credit Agreementtermination.
Appears in 2 contracts
Samples: Merger Agreement (JMP Group LLC), Merger Agreement (JMP Group LLC)
Treatment of Company Indebtedness. The Company shall, and shall cause the Company Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on the Closing Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent at At least two business days prior to the Closing Date, and shall deliver the Company will use its reasonable best efforts to cause to be delivered to Parent on or prior to the Closing Date, an executed a payoff letter with respect required to effect or evidence the Company Credit Agreement release described in clause (ii) below (the “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf in customary form, to be executed and delivered as of the Persons to whom such Indebtedness is owed, Closing by the administrative agent (the “Financing Existing Agent”) under the Company’s Third Amended and Restated Loan Agreement dated as of January 16, 2018 (as amended prior to the date hereof, the “Existing Credit Agreement”), which shall (i) indicate the total amount necessary for the Company to repay and discharge in full all amounts outstanding pursuant to the terms of the Existing Credit Agreement (other than for customary indemnity and other contingent obligations that expressly survive by their terms) (such amount, the “Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guaranteesAmount”), if any(ii) provide for the release, granted in connection therewith relating to upon payment of the assetsPayoff Amount at the Closing (or replacement, rights cash collateralization or backstop of existing letters of credit), of all liens of the Existing Agent securing obligations under the Existing Credit Agreement over the properties and properties assets of the Company and each of its Subsidiaries (other than any cash that is used to cash collateralize existing letters of credit, if applicable) that constitute collateral under the Company Subsidiaries securing such Indebtedness Existing Credit Agreement and any other obligations secured thereby, shall, upon the payment equity interests of the amount set forth in the applicable Payoff Letter on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement), in no event shall this Section 7.14 require the Company or any of its Subsidiaries that constitute collateral under the Company Subsidiaries to cause Existing Credit Agreement and (iii) evidence the Credit Facility Terminations to be consummated unless and until termination or other satisfaction, upon payment of the Effective Time has occurred and Parent has provided or caused to be provided to Payoff Amount at the Company or the Company Subsidiaries funds Closing (or Parent has directed replacement, cash collateralization or backstop of existing letters of credit), of all obligations under the Existing Credit Agreement (other than for customary indemnity obligations that expressly survive by their terms). The Company or any shall deliver (by the applicable date required under the terms of the Company Subsidiaries Existing Credit Agreement) any notices (including notices of prepayment) necessary to use funds on their balance sheet) to pay permit the prepayment, payoff, discharge and termination in full at the then-outstanding principal amount Closing of and accrued and unpaid interest and fees all indebtedness under the Company Existing Credit AgreementAgreement on the Closing Date.
Appears in 2 contracts
Samples: Merger Agreement (Worldpay, Inc.), Merger Agreement (Fidelity National Information Services, Inc.)
Treatment of Company Indebtedness. (i) The Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to, as soon as reasonably practicable after (and not prior to) the receipt of a written request from Parent to do so, on the terms and conditions specified by Parent and in compliance with all applicable terms and conditions of the Existing Term Loan or Existing Note Purchase Agreement, as applicable, (A) seek an amendment or amendments to the Existing Note Purchase Agreement to enable the entry into payoff documentation providing for the conditional discharge and termination of, or pursue any other approach chosen by Parent to the defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee or other treatment of, the Existing Note Purchase Agreement, 2017 Private Placement Notes and 2020 Private Placement Notes upon the occurrence of the Closing (any transaction pursuant to this clause (A), a “Note Purchase Agreement Transaction”) and (B) seek an amendment or amendments to the Existing Term Loan to permit the Mergers and the other transactions contemplated by this Agreement, including the Debt Financing, or pursue any other approach chosen by Parent to the defeasance, satisfaction and discharge, constructive satisfaction and discharge, refinancing, repayment, repurchase, redemption, termination, amendment, guarantee or other treatment of the Existing Term Loan (any transaction pursuant to this clause (B), a “Term Loan Transaction”). Parent will be permitted to commence and conduct offers to purchase or exchange, and conduct consent solicitations with respect to, any or all of the outstanding Senior Notes on such terms and conditions, including pricing terms and amendments to the terms and provisions of the Existing Senior Notes Indenture, that are specified, from time to time, by Parent (each, a “Debt Offer” and collectively, the “Debt Offers”) and which are permitted by the terms of such Senior Notes, the Existing Senior Notes Indenture and applicable Law, including SEC rules and regulations; provided, that any such Debt Offer shall be consummated substantially simultaneously with or after the Closing using funds provided by Parent (the Note Purchase Agreement Transactions, Term Loan Transactions and Debt Offers, collectively the “Debt Transactions”). The Company shall not be required to take any action in respect of any Debt Transaction, or to execute or deliver any document in connection therewith, until Parent shall have provided the Company with the necessary documentation (including any reasonably requested indemnification) required in connection with such Debt Transaction that shall comply with the requirements of this clause (e) and otherwise be in a form reasonably satisfactory to the Company (collectively, the “Debt Transaction Documents”). Parent will consult with the Company regarding the timing of any Debt Offer conducted by the Company in light of the regular financial reporting schedule of the Company and the requirements of applicable Law. The Company shall use commercially reasonable efforts to, and shall cause its Subsidiaries to use commercially reasonable efforts to, cause their respective Representatives to provide cooperation and assistance reasonably requested by Parent in connection with the Debt Transactions (including (i) taking all corporate action reasonably necessary to authorize the execution and delivery of any Debt Transaction Documents to be entered into prior to Closing (such corporate action, execution and delivery not to be unreasonably withheld, delayed or conditioned), (ii) delivering any certificate, document or instrument reasonably required by the Depository Trust Company or any dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any consent solicitation that is part of any Debt Offer, and (iii) to the extent required by the policies or procedures of the Depository Trust Company in connection with any consent solicitation that is part of any Debt Offer, the Company conducting any such consent solicitation); provided, that (1) such cooperation does not unreasonably interfere with the operations of the Company and its Subsidiaries, (2) the effectiveness of any such Debt Transaction with respect to the Existing Term Loan and the closing of any such Debt Transaction with respect to the 2017 Private Placement Notes, 2020 Private Placement Notes or any of the Senior Notes shall be expressly conditioned on the Closing, (3) the Company and its Subsidiaries shall not be required in connection with any Debt Transaction to pay any fees or reimburse any expenses prior to the Closing for which it has, upon written request to Parent, not received prior reimbursement by or on behalf of Parent, and (4) such Debt Transaction shall be conducted in compliance with applicable Law, including applicable SEC rules and regulations, and the terms and conditions of the Existing Note Purchase Agreement, the Existing Term Loan or the Existing Senior Notes Indenture, as applicable. It is understood and agreed that a failure to obtain the amendments or consummate any offer or consent solicitation contemplated by the Debt Transactions (as described above) shall not constitute a failure by the Company to satisfy its obligations under this Section 8.05(e).
(ii) Following the commencement of any Debt Transaction, the Company shall not, and shall cause its Subsidiaries not to, make any change to the terms and conditions of such Debt Transaction, unless such change is previously approved by Parent in writing (such consent not to be unreasonably withheld or delayed) or required by applicable Law or the terms and conditions of the Existing Note Purchase Agreement, Existing Term Loan or the Existing Senior Notes Indenture, as applicable. The Company shall, and shall cause its Subsidiaries to, waive any of the conditions to such Debt Transaction (other than that the Closing shall have occurred and that there shall be no Law, injunction or other legal restraint prohibiting such waiver or consummation of such Debt Transaction) as may be reasonably requested by Parent and shall not, without the written consent of Parent, waive any condition to such Debt Transaction other than as agreed in writing between Parent and the Company.
(iii) Parent shall keep the Company reasonably informed, on a reasonably current basis, as to the status of communications with the holders of the 2017 Private Placement Notes, 2020 Private Placement Notes, Senior Notes or the agent or lenders under the Existing Term Loan in connection with any Debt Transaction.
(iv) The Company shall, and shall cause its Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent that are required to, in accordance with to facilitate the terms thereof, terminate termination at the Effective Time of all commitments outstanding under in respect of the Company Credit AgreementFacilities and any other indebtedness of the Company to be paid off, repay discharged and terminated on the Closing Date, the repayment in full on the Closing Date of all obligations, if any, outstanding obligations in respect of the indebtedness thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on the Closing Date as of the Effective Time (any Liens securing such termination, repayment indebtedness and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice guarantees in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such noticeconnection therewith. In furtherance and not in limitation of the foregoing, the Company shall, and its Subsidiaries shall cause the Company Subsidiaries to, use commercially reasonable best efforts to deliver to Parent (x) at least two business days ten (10) Business Days prior to the Closing Date, a draft payoff letter with respect to the Company Credit Facilities and shall deliver any other indebtedness of the Company to Parent be paid off, discharged and terminated on or the Closing Date and (y) at least three (3) Business Days prior to the Closing Date, an executed payoff letter with respect to each of the Company Credit Agreement Facilities (the “Payoff LetterLetters”) and any other indebtedness of the Company to be paid off, discharged and terminated on the Closing Date, in each case in form and substance customary for transactions of this type (and drafts reasonably in advance thereof)type, from the applicable agent on behalf of the Persons to whom such Indebtedness indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith with the Company Credit Facilities or any other indebtedness of the Company to be paid off, discharged and terminated on the Closing Date relating to the assets, rights and properties of the Company and the Company its Subsidiaries securing or relating to such Indebtedness and any other obligations secured therebyindebtedness, shall, upon the payment of the amount set forth in the applicable Payoff Letter on at or prior to the Closing DateEffective Time, be released and terminated. The obligations of the Company pursuant to this Section 8.05(e)(iv) shall be subject to Parent and Xxxxxx Sub shall use reasonable best efforts providing or causing to enter arrangements reasonably satisfactory be provided all funds required to effect all such repayments at or prior to the Financing Agent in respect Effective Time. For purposes of any letters this Section 8.05(e)(iv), upon the receipt of credit issued under a written notice from Parent to the Company Credit Agreement. Notwithstanding anything in this Agreement at least fifteen (15) Business Days prior to the contrary (but subject to Closing Date, the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms Existing Term Loan shall be deemed one of the Company Credit Agreement), in no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit AgreementFacilities.
Appears in 2 contracts
Samples: Merger Agreement (Abbott Laboratories), Merger Agreement (St Jude Medical Inc)
Treatment of Company Indebtedness. The Company shall, and Parent shall cause the Company Subsidiaries to, deliver all notices and take all cooperate with each other with respect to customary actions for transactions of this type that are reasonably requested by Parent that are required to, in accordance with to be taken by the terms thereof, terminate all commitments outstanding Company or its Subsidiaries under the Company Credit AgreementAgreement or any of the Company’s outstanding debt securities in connection with the Merger; provided that (i) none of the Company, repay its Subsidiaries or their representatives shall be required to execute or deliver, or agree to any change or modification of, any agreement that is effective prior to the Closing or that would be effective if the Closing does not occur, or deliver or cause to be delivered any opinion of counsel in full of all obligations, if any, outstanding thereunder, connection therewith and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, (ii) Parent shall provide a customary indemnity in connection therewith, in each case, on the Closing Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of Without limiting the foregoing, the Company shallshall use reasonable best efforts, and shall cause the Company its applicable Subsidiaries toto use commercially reasonable efforts, use reasonable best efforts to deliver to Parent at least two business days three (3) Business Days prior to the Closing Date, and shall deliver to Parent on or prior Date a copy of a payoff letter (subject to the Closing Date, an executed payoff letter delivery of funds as arranged by Parent) with respect to the Company Credit Agreement (the “Payoff LetterSubject Indebtedness”) in form customary form, which payoff letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, prepayment premiums, penalties, breakage costs and substance customary for transactions any other monetary obligations then due and payable under the Subject Indebtedness as of this type the anticipated Closing Date (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, daily accrual thereafter) (the “Financing AgentPayoff Amount”), which (ii) state that upon receipt of the Payoff Letters together with any Amount under such payoff letter, the Subject Indebtedness and all related release documentation shall, among other things, include the payoff amount loan documents shall be terminated and (iii) provide that all Liens (and guarantees), if any, granted guarantees in connection therewith with the Subject Indebtedness relating to the assets, rights assets and properties of the Company and the Company or any of its Subsidiaries securing such the obligations under the Subject Indebtedness shall be released and any other obligations secured thereby, shall, terminated upon the payment of the amount set forth in the applicable Payoff Letter Amount on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement), in no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Noble Energy Inc), Merger Agreement (Noble Energy Inc)
Treatment of Company Indebtedness. The Company shallshall use reasonable best efforts, and shall cause its applicable Subsidiaries to use reasonable best efforts, to deliver to Pubco and SPAC at least two Business Days prior to the Company Subsidiaries to, deliver all notices and take all other actions Acquisition Merger Closing Date (with drafts being delivered in advance as reasonably requested by Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full SPAC) (a) a copy of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on the Closing Date as of the Effective Time a payoff letter (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent at least two business days prior subject to the Closing Date, and shall deliver to Parent on or prior to the Closing Date, an executed payoff letter delivery of funds as arranged by SPAC) with respect to the Company Credit Agreement (the Indebtedness under the Credit Agreement and any related letter of credit, secured cash management agreement or secured hedge agreement, the “Payoff LetterSubject Indebtedness”) in customary form reasonably satisfactory to Pubco and substance customary for transactions SPAC, which payoff letter shall (i) indicate the total amount required to be paid to fully satisfy all principal, interest, fees, prepayment premiums, termination costs, penalties, breakage costs and any other monetary obligations then due and payable under the Subject Indebtedness as of this type the anticipated Acquisition Merger Closing Date (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, daily accrual thereafter) (the “Financing AgentPayoff Amount”), which (ii) state that upon receipt of the Payoff Letters together with any Amount under such payoff letter, the Subject Indebtedness and all related release documentation shall, among other things, include the payoff amount loan documents shall be terminated and (iii) provide that all Liens (and guarantees), if any, granted guarantees in connection therewith with the Subject Indebtedness relating to the assets, rights assets and properties of the Company and the Company or any of its Subsidiaries securing such the obligations under the Subject Indebtedness shall be released and any other obligations secured thereby, shall, terminated upon the payment of the amount set forth in the applicable Payoff Letter Amount on the Acquisition Merger Closing Date, be released Date and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory (b) all documentation relating to the Financing Agent in release of all related Liens and guarantees with respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary Subject Indebtedness (but subject to the requirement to deliver prepayment and including any termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreementstatements on Form UCC-3 or other releases), in no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit Agreement.
Appears in 1 contract
Treatment of Company Indebtedness. (a) The Company shall, or shall cause its applicable subsidiaries to, arrange for customary payoff letters and instruments of discharge to be delivered at Closing providing for the payoff, discharge and termination on the Closing Date of all then-outstanding indebtedness of, and commitments under, the Credit Facility, and shall deliver, or cause the Company Subsidiaries toits applicable subsidiaries to deliver, deliver all prepayment and termination notices and take all other actions reasonably requested by Parent that are required to, in accordance with the terms thereofof such indebtedness to the holders of such indebtedness (provided that such prepayment and termination notices may be conditional on the occurrence of the Closing).
(b) Prior to the Closing Date, terminate all commitments outstanding under as soon as reasonably practicable after Parent so requests in writing, the Company Credit Agreementshall issue, repay or use its reasonable best efforts to cause the Trustee (as defined below) to issue, a notice of optional redemption for some or all (which amount shall be specified in full Parent’s written request) of all obligationsthe outstanding aggregate principal amount of Team Health, if anyInc.’s 7.250% Senior Notes due 2023 (the “Existing Notes”), outstanding thereunderpursuant to Section 3.03 and Section 3.07 of the indenture (the “Indenture”) governing the Existing Notes, dated as of November 23, 2015, among Team Health, Inc., the guarantors party thereto and facilitate Xxxxx Fargo Bank, National Association (the release “Trustee”), which notice will be conditional on the Closing; provided that the terms of all Lienssuch request are permitted by the Indenture. The Company agrees to assist Parent upon reasonable request in making arrangements for redemption, if anydefeasance, securing such obligationssatisfaction and/or discharge of the Existing Notes and shall redeem, and defease, satisfy and/or discharge, as applicable, the release Existing Notes in accordance with the terms of all guarantees, if any, in connection therewith, in each case, the Indenture on the Closing Date as Date, including the delivery of the Effective Time (such terminationan officers’ certificate, repayment and releases, the “Credit Facility Terminations”); provided thatbut not, for the avoidance of doubt, including the Company may rescind any such notice delivery of a legal opinion, which will be delivered by counsel for Parent. Simultaneously with and conditioned upon the Closing and in accordance with the notice of optional redemption (but prior to the time the Company is required to pay for any redemption of the Existing Notes in accordance with this Section 6.11(b)), Parent shall provide to the Company or the Trustee, as applicable, the funds necessary to consummate any redemption, defeasance, satisfaction and/or discharge in accordance with Section 6.11(b) (including the payment of all applicable premiums and all related fees and expenses) and shall pay all fees and expenses related thereto, including those of the Trustee.
(c) Prior to the Closing Date, as soon as reasonably practicable after Parent so requests in writing, the Company shall use its reasonable best efforts to commence one or more offers to purchase and/or consent solicitations with respect to some or all of the outstanding aggregate principal amount of the Existing Notes, on such terms and conditions, including pricing terms, that are specified in writing, from time to time, by Parent (each, a “Debt Tender Offer”), and Parent shall assist the Company in connection therewith; provided that Parent shall only request the Company to conduct any Debt Tender offer in compliance with the Indenture and the applicable requirements of Rule 14e-1 promulgated under the Exchange Act. Parent, at its own expense, shall prepare all necessary and appropriate documentation in connection with a Debt Tender Offer, including the offer to purchase and/or consent solicitation statement, related consents and letters of transmittal and other related documents (collectively, the “Offer Documents”). Parent and the Company shall reasonably cooperate with each other in the preparation of the Offer Documents. The Offer Documents (including all amendments or supplements thereto) and all mailings to the holders of the Existing Notes in connection with a Debt Tender Offer shall be subject to the prior review of, and comment by, the Company and shall be reasonably acceptable in form and substance to each of the Company Credit Agreement and Parent. Promptly following the expiration of a consent solicitation, if any, assuming the Effective Time does not occur on requisite consent from the prepayment and termination date specified in such notice. In furtherance and not in limitation holders of the foregoingExisting Notes (including from persons holding proxies from such holders) has been received, the Company shallshall execute, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver cause the Trustee to Parent at least two business days prior to the Closing Dateexecute, and shall deliver to Parent on or prior to the Closing Date, an executed payoff letter with respect to the Company Credit Agreement any appropriate supplemental indenture (the “Payoff LetterSupplemental Indenture”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties amendments of the Company Indenture contemplated in the Debt Tender Offer; provided, however, that notwithstanding the fact that a Supplemental Indenture may have been executed and become effective earlier, the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount proposed amendments set forth in the applicable Payoff Letter on the Closing Date, be released and terminated. Parent and Xxxxxx Sub therein shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement), in no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated not become operative unless and until the Effective Time has occurred and all conditions to the Debt Tender Offer have been satisfied or (subject to approval by Parent) waived by the Company in accordance with the terms hereof. The form and substance of the Supplemental Indentures shall be reasonably satisfactory to Parent has provided and the Company. Notwithstanding the foregoing, the closing of the Debt Tender Offer shall be conditional on the Closing, and the Company, its Subsidiaries and Parent shall use their respective reasonable best efforts to cause the Debt Tender Offer to close on the Closing Date. The Company shall provide, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause their respective Representatives to, provide all cooperation reasonably requested by Parent in connection with the Debt Tender Offer, including using reasonable best efforts in assisting with the preparation of the offer to purchase, consent solicitation statement and/or letter of transmittal and delivery of customary officers’ certificates and legal opinions on or caused prior to the Closing Date. The Company (a) shall waive any of the conditions to the Debt Tender Offer (other than the occurrence of the Closing) and make any change to the Debt Tender Offer, in each case, as may be provided reasonably requested in writing by Parent and (b) shall not, without the written consent of Parent, waive any condition to the Debt Tender Offer or make any changes to the Debt Tender Offer. Notwithstanding anything to the contrary herein, it is expressly agreed by the parties hereto that the failure to obtain any tender or consent of the Existing Notes by the holders thereof or otherwise complete a Debt Tender Offer shall not relieve Parent of its obligation to consummate the transactions contemplated by this Agreement or otherwise delay the Closing. Simultaneously with and conditioned upon the Closing and in accordance with the terms of any Debt Tender Offer (but prior to the time the Company is required to pay for any Debt Tender Offer in accordance with this Section 6.11(c)), Parent shall provide to the Company the funds necessary to consummate any Debt Tender Offer in accordance with this Section 6.11(c) (including the payment of all applicable premiums, consent fees and all related fees and expenses) and shall pay all fees and expenses related thereto, including those of the Trustee, any dealer manager or solicitation agent and any information agent or depositary.
(d) With respect to the Existing Notes, as soon as reasonably practicable after Parent so requests in writing, the Company Subsidiaries shall (i)(A) issue a notice with respect to a “Change of Control Offer” (as defined in the Indenture) for the repurchase, on and subject to the occurrence of a Change of Control Payment Date (as defined in the Indenture) as specified in writing by Parent, all of the outstanding aggregate principal amount of Existing Notes, pursuant to Section 4.14 of the Indenture and the other provisions of the Indenture applicable thereto, which notice will be conditional on the Closing, and (B) otherwise comply with the Indenture with respect to such Change of Control Offer, or (ii) take any actions reasonably requested by Parent to facilitate the satisfaction and/or discharge of the Existing Notes by the Surviving Corporation on or following the Effective Time pursuant to the Indenture. Parent, at its own expense, shall prepare all necessary and appropriate documentation in connection with a Change of Control Offer (the “Change of Control Offer Documents”). Parent and the Company shall reasonably cooperate with each other in the preparation of the Change of Control Offer Documents. The Change of Control Offer Documents (including all amendments or supplements thereto) and all mailings to the holders of the Existing Notes in connection with a Change of Control Offer shall be subject to the prior review of, and comment by, the Company and shall be reasonably acceptable in form and substance to each of the Company and Parent. Simultaneously with and conditioned upon the Closing and in accordance with the terms of any Change of Control Offer (but prior to the time the Company is required to pay for any Change of Control Offer in accordance with this Section 6.11(d)), Parent shall provide to the Company the funds necessary to consummate any Change of Control Offer in accordance with this Section 6.11(d) (including the payment of all applicable premiums and all related fees and expenses) and shall pay all fees and expenses related thereto, including those of the Trustee and any information agent or depositary.
(e) The dealer manager, solicitation agent, information agent, depositary, paying agent and/or any other agents retained in connection with any actions taken pursuant to this Section 6.11 shall be selected by Parent. Without limiting Section 6.11(f), the Company shall enter into customary agreements (including indemnities) with such parties so selected and on terms and conditions acceptable to Parent. Parent has directed shall promptly, upon request by the Company, reimburse the Company for all reasonable and documented out-of-pocket costs incurred by the Company or its Subsidiaries in connection with this Section 6.11.
(f) Parent shall indemnify and hold harmless the Company and its Subsidiaries and their respective officers and directors from and against any and all damages suffered or incurred by them in connection with any actions taken pursuant to this Section 6.11; provided, however, that Parent shall not have any obligation to indemnify and hold harmless any such party or person to the extent any such damages suffered or incurred arose from disclosure regarding the Company that is determined to have contained a material misstatement or omission or due to the gross or negligent misconduct of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit AgreementCompany.
Appears in 1 contract
Treatment of Company Indebtedness. The Company shall, and shall cause the Company each of its Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent the Purchaser that are required to, to facilitate in accordance with the terms thereof, terminate thereof the termination of all commitments outstanding under each of the Company Credit AgreementExisting Financing Instruments and the Accounts Receivable Purchase Program, repay the repayment in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, guarantees in connection therewith, in each case, therewith on the Closing Effective Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company each of its Subsidiaries to, use reasonable best efforts to deliver to Parent the Purchaser at least two business days three (3) Business Days prior to the Closing Date(with drafts being delivered in advance as reasonably requested by the Purchaser), and shall deliver to Parent on or prior to the Closing Date, an executed payoff letter letters (and similar instruments), in each case, with respect to each of the Company Credit Agreement Existing Financing Instruments and the Accounts Receivable Purchase Program (the each, a “Payoff Letter”) and all related release documentation, in each case, in form and substance customary for transactions of this type (and drafts reasonably in advance thereof)type, from the applicable agent on behalf of the Persons to whom such Indebtedness is owed (or, if there is no such agent, from the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company its Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing Effective Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory Notwithstanding anything herein to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement)contrary, in no event shall this Section 7.14 4.10 require the Company or any of the Company its Subsidiaries to cause the Credit Facility Terminations to be consummated effective unless and until the Effective Time has occurred and Parent the Purchaser has provided or caused to be provided to the Company or the Company its Subsidiaries funds (or Parent has directed the Purchaser and the Company have agreed that the Company or any of the Company Company’s Subsidiaries to shall use funds on their balance sheetsheet at Closing for such purpose; provided that the Company shall not unreasonably withhold, condition or delay any such agreement) to pay in full the then-outstanding principal amount amounts required pursuant to the terms of and accrued and unpaid interest and fees under the Company Credit AgreementPayoff Letters.
Appears in 1 contract
Samples: Arrangement Agreement (Semtech Corp)
Treatment of Company Indebtedness. The Company shall, and shall cause the Company each of its Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent the Purchaser that are required to, to facilitate in accordance with the terms thereof, terminate thereof the termination of all commitments outstanding under the Company Existing BMO Credit AgreementFacility, repay the repayment in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, guarantees in connection therewith, in each case, therewith on the Closing Effective Date as of the Effective Time (such termination, repayment and releases, the “"Credit Facility Terminations”"); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoingfurtherance, the Company shall, and shall cause the Company each of its Subsidiaries to, use reasonable best efforts to deliver to Parent the Purchaser at least two business days three (3) Business Days prior to the Closing Date, and shall deliver to Parent on or prior to (with drafts being delivered in advance as reasonably requested by the Closing DatePurchaser), an executed payoff letter (and similar instruments) with respect to the Company Existing BMO Credit Agreement Facility (the “"Payoff Letter”") and all related release and termination documentation, in each case, in form and substance customary for transactions of this type (and drafts reasonably in advance thereof)acceptable to the Purchaser, from the applicable agent on behalf of the Persons to whom such Indebtedness is owed (or, if there is no such agent, from the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters Letter together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company its Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing Effective Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory Notwithstanding anything herein to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement)contrary, in no event shall this Section 7.14 4.9 require the Company or any of the Company its Subsidiaries to cause the Credit Facility Terminations to be consummated effective unless and until the Effective Time has occurred and Parent the Purchaser has provided or caused to be provided to the Company or the Company its Subsidiaries funds (or Parent has directed the Purchaser and the Company have agreed that the Company or any of the Company Company's Subsidiaries to shall use funds on their balance sheetsheet at Closing for such purpose; provided that the Company shall not unreasonably withhold, condition or delay any such agreement) to pay in full the then-outstanding principal amount amounts required pursuant to the terms of and accrued and unpaid interest and fees the Payoff Letter in accordance with the obligations of the Purchaser under the Company Credit AgreementSection 2.9.
Appears in 1 contract
Samples: Arrangement Agreement (Nuvei Corp)
Treatment of Company Indebtedness. The (a) If requested in writing by Parent at least fifteen (15) Business Days prior to the Closing Date, the Company shall, shall (and shall cause the Company Subsidiaries to, ) deliver all notices and take all other actions reasonably requested by Parent that are required to, in accordance with to facilitate at or prior to the terms thereof, terminate Effective Time the termination of all commitments outstanding under Indebtedness of the Company Credit Agreementfor borrowed money, repay the repayment in full of all obligations, if any, obligations outstanding thereunder, and facilitate the release of all Liens, if any, Liens securing such obligations, and the release of all guarantees, if any, guarantees in connection therewith; provided, in each casehowever, on that neither the Closing Date as Company nor the Company Subsidiaries shall be required to take any such action that is not conditioned upon the occurrence of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such noticeClosing. In furtherance and not in limitation of the foregoing, if requested by Parent pursuant to this Section 6.12(a), the Company shall, and shall cause the Company Subsidiaries to, (A) use commercially reasonable best efforts to deliver to Parent at least two business days four (4) Business Days on or prior to the Closing Date, a draft payoff letter and shall related release documentation and (B) deliver to Parent on or prior to the Closing Date, an executed payoff letter and executed related release documentation, in each case, with respect to the Company Credit Agreement such Indebtedness for borrowed money (the “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof)type, from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters Letter together with any related release documentation shall, among other things, include the payoff amount and provide that all guarantees and Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on at or prior to the Closing DateEffective Time, be released and terminated. Parent .
(b) Upon written request of Parent, the Company shall, and Xxxxxx Sub shall cause the Company Subsidiaries to, use reasonable best efforts to, as applicable, (i) execute and deliver, or cause to enter arrangements reasonably satisfactory be executed and delivered, at or prior to the Financing Agent in respect of any letters of credit issued Effective Time, such documents or instruments required under the Company Credit Agreement. Notwithstanding anything in this Agreement Notes pursuant to the contrary applicable indentures governing such Company Notes (but subject to each, an “Indenture”) as a direct result of the requirement to deliver prepayment Merger, and termination notices (ii) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the time other parties required to execute such instruments and take any actions reasonably requested by and otherwise in accordance with the terms of the Company Credit Agreement), in no event Parent (which shall this Section 7.14 not require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to payment by the Company or the Company Subsidiaries funds (Subsidiaries) that are customary or Parent has directed necessary in connection with the foregoing, including in each case, delivering and using reasonable best efforts to cause counsel for the Company or any to deliver, customary officer’s certificates, supplemental indentures and legal opinions, respectively, to the trustee under the applicable Indenture, to the extent such certificates, supplemental indentures and opinions are required thereby, would not conflict with applicable Laws and would be accurate in light of the Company Subsidiaries to use funds on their balance sheet) to pay in full facts and circumstances at the then-outstanding principal amount time delivered; provided that any such action described above shall not be required unless it can be and is conditioned upon the occurrence of and accrued and unpaid interest and fees under the Company Credit AgreementEffective Time.
Appears in 1 contract
Treatment of Company Indebtedness. (a) The Company shall, shall (and shall cause the Company Subsidiaries to, ) deliver all notices and take all other actions reasonably requested by Parent that are required to, in accordance with to facilitate at or prior to the terms thereof, terminate First Effective Time the termination of all commitments outstanding under the Company Credit Agreement, repay the repayment in full of all obligations, if any, obligations outstanding thereunder, and facilitate the release of all Liens, if any, Liens securing such obligations, and the release of all guarantees, if any, guarantees in connection therewith, in each case, on the Closing Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, (A) use reasonable best efforts to deliver to Parent at least two business days seven (7) Business Days prior to the Closing Date, a draft payoff letter and shall draft related release documentation and (B) deliver to Parent on or at least two (2) Business Days prior to the Closing Date, an executed payoff letter and executed related release documentation, in each case, with respect to the Company Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof)type, from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters Letter together with any related release documentation shall, among other things, include the payoff amount and provide that all guarantees and Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on at or prior to the Closing DateFirst Effective Time, be released and terminated. .
(b) Within the time periods required by the terms of the Convertible Notes Indenture, the Company shall, and shall cause the Company Subsidiaries to, take all actions required by, or reasonably requested by Parent pursuant to, the Convertible Notes Indenture and applicable Law to be performed by the Company or any Company Subsidiary at or prior to the Second Effective Time as a result of the execution and delivery of this Agreement or the consummation of the Transactions, including the giving of any notices that may be required or reasonably requested by Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory delivery to the Financing Agent in respect trustee, holders or other applicable Person, as applicable, of any letters documents or instruments required or reasonably requested by Parent to be delivered at or prior to the Second Effective Time to such trustee, holders or other applicable Person, in each case in connection with the execution and delivery of credit issued under this Agreement, the Transactions or as otherwise required by, or reasonably requested by Parent pursuant to, the Convertible Notes Indenture; provided that the Company Credit Agreement. Notwithstanding anything in this Agreement (or the applicable Company Subsidiary) shall deliver a copy of any such notice or other document to the contrary Parent at least three (but subject 3) Business Days prior to the requirement to deliver prepayment and termination notices by the time required by and otherwise delivering or entering into such notice or other document in accordance with the terms of the Convertible Notes Indenture. Without limiting the generality of the foregoing, prior to the Second Effective Time, the Company Credit Agreementagrees to cooperate with Parent, at Parent’s written request, by (i) executing and delivering (or causing to be executed and delivered, as applicable) at the First Effective Time and/or Second Effective Time, as applicable, one or more supplemental indentures, officer’s certificates and opinions of counsel, in each case in form and substance reasonably acceptable to Parent, pursuant to the Convertible Notes Indenture and (ii) using its reasonable best efforts to cause the trustee under the Convertible Notes Indenture to execute at the First Effective Time and/or Second Effective Time, as applicable, any such supplemental indenture.
(c) Prior to the First Effective Time, the Company shall (i) facilitate the settlement of the Convertible Note Hedge Obligations substantially concurrently with the First Effective Time as reasonably requested by Parent (it being understood that any such settlement, including the timing thereof, will be subject to the terms of the Capped Call Confirmations, unless otherwise agreed by the relevant dealer thereunder) and (ii) cooperate with Parent with respect to its efforts to settle the Convertible Note Hedge Obligations and the negotiation of any termination or settlement payment or valuation related thereto; provided that the Company shall not (x) exercise any right that it may have to terminate the Convertible Note Hedge Obligations (other than any exercise or termination contemplated pursuant to Section 9(h)(i) of the Capped Call Confirmations upon any conversion of Convertible Notes prior to the First Effective Time (a “Specified Exercise”)); it being agreed that the Company shall notify Parent in writing as promptly as practicable prior to any such exercise or termination) or (y) agree to amend, modify or supplement the terms relating to, or agree to any amount due upon, the termination or settlement thereof, in each case of clauses (x) and (y), without the prior written consent of Parent; provided, further, that nothing in no event shall this Section 7.14 6.15(c) shall require the Company to (A) pay any fees, incur or reimburse any costs or expenses, or make any payment in connection with any Convertible Note Hedge Obligations prior to the occurrence of the First Effective Time, (B) enter into or effect any settlement, termination, instrument or agreement, or agree to any settlement, termination or any other change or modification to any instrument or agreement, that is effective prior to the occurrence of the First Effective Time or (C) refrain from delivering, or delay the delivery of, any notice required by the terms of the Convertible Note Hedge Obligations or a notice contemplated by Section 9(h)(i) of the Capped Call Confirmations in connection with a Specified Exercise (it being understood that the Company will provide Parent with prior notice of any such delivery with an opportunity to comment on the relevant notice).
(d) Parent and/or one of its Subsidiaries may (i) commence one or more offers to purchase any or all of the outstanding Convertible Notes for cash, Parent Common Stock or a combination thereof (the “Offers to Purchase”); and/or (ii) solicit the consent of the holders of Convertible Notes regarding certain proposed amendments to the Convertible Notes Indenture (the “Consent Solicitations” and, together with any Offers to Purchase, the “Company Note Offers and Consent Solicitations”); provided that the closing of any such Offer to Purchase shall not be consummated prior to the First Effective Time and any such transaction shall be funded using consideration provided by Parent or any of its Subsidiaries (other than the Company or one of its Subsidiaries). Any Company Note Offers and Consent Solicitations shall be made on such terms and conditions (including price to be paid and conditionality) as are proposed by Parent or one of its Subsidiaries and which are permitted by the terms of such Convertible Notes, the Convertible Notes Indenture and applicable Laws, including SEC rules and regulations. Parent and its Subsidiaries shall consult with the Company regarding the material terms and conditions of any Company Note Offers and Consent Solicitations, including the timing and commencement of any Company Note Offers and Consent Solicitations and any tender deadlines. Parent shall not be permitted to commence any Company Note Offers and Consent Solicitations until Parent shall have provided to the Company the necessary offer to purchase, consent solicitation statement, letter of transmittal, press release, if any, in connection therewith, and each other document relevant to the transaction that will be distributed by Parent or any of its Subsidiaries to holders of the Convertible Notes in the applicable Company Note Offers and Consent Solicitations (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Company Note Offers and Consent Solicitations to allow the Company and its counsel to review and comment on such Debt Offer Documents (and Parent shall consider in good faith comments of the Company and its counsel thereon). Subject to the receipt of the requisite consents, in connection with any or all of the Consent Solicitations, the Company shall execute a supplemental indenture to the Convertible Notes Indenture in accordance with the terms thereof amending the terms and provisions of such Convertible Notes Indenture as described in the applicable Debt Offer Documents in a form as reasonably requested by Parent, which supplemental indenture shall become effective promptly upon receipt of the requisite consents (or as otherwise contemplated in the applicable Consent Solicitation) but shall not become operative until the First Effective Time. At Parent’s or its Subsidiaries’ expense, the Company shall, and shall cause its Subsidiaries to and shall use its reasonable best efforts to cause its and their respective Representatives to, on a timely basis, upon the reasonable request of Parent or any of its Subsidiaries, provide cooperation in connection with any Company Note Offers and Consent Solicitations (including but not limited to requesting, and using reasonable best efforts to cause, the Company’s independent accountants to provide customary consents for use of their reports to the extent required in connection with any Company Note Offers and Consent Solicitations); provided that prior to the First Effective Time, neither the Company nor counsel for the Company shall be required to furnish any certificates, legal opinions or negative assurance letters in connection with any Company Note Offers and Consent Solicitations (other than, in connection with the execution of the supplemental indentures relating to the Consent Solicitations, the Company delivering and using reasonable best efforts to cause counsel for the Company to deliver customary officer’s certificates and customary legal opinions (other than any opinions as to tax matters), respectively, to the trustee under the Convertible Notes Indenture, to the extent such certificates and opinions would not conflict with applicable Laws and would be accurate in light of the facts and circumstances at the time delivered) or execute any other instruments or agreements in connection therewith other than the supplemental indenture described in the immediately preceding sentence. The dealer manager, solicitation agent, information agent, depositary or other agent retained in connection with any Company Note Offers and Consent Solicitations will be selected by Parent or its Subsidiaries and their fees and out-of-pocket expenses will be paid directly by Parent. The consummation of any or all of the Company Note Offers and Consent Solicitations shall not be a condition to Closing. If at any time prior to the completion of the Company Note Offers and Consent Solicitations, any information should be discovered by the Company, Parent or one of their respective Subsidiaries that any of the Company, Parent or any of their respective Subsidiaries reasonably believes should be set forth in an amendment or supplement to the Debt Offer Documents, so that the Debt Offer Documents shall not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of circumstances under which they are made, not misleading, the party that discovers such information shall use reasonable best efforts to promptly notify the other party, and an appropriate amendment or supplement prepared by Parent describing such information shall be disseminated by or on behalf of the Parent to the holders of the applicable Convertible Notes (which supplement or amendment and dissemination may, at the reasonable direction of Parent, if related to information of the Company or any of its Subsidiaries take the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and form of a filing of a Current Report on Form 8-K); provided that Parent has provided shall provide a copy of such amendment or caused to be provided supplement to the Company a reasonable period of time in advance of such dissemination to allow for Company and its counsel to review and comment on such amendment or the Company Subsidiaries funds supplement (or and Parent has directed the Company or any shall consider in good faith and accept all reasonable comments of the Company Subsidiaries to use funds and its counsel thereon).
(e) As promptly as practical on their balance sheetor after the Free Trade Date (as defined in the Convertible Notes Indenture) to pay and in full any event no later than the thenDe-outstanding principal amount of and accrued and unpaid interest and fees under Legending Deadline Date (as defined in the Convertible Notes Indenture), the Company Credit Agreementshall remove the Restrictive Notes Legend (as defined in the Convertible Notes Indenture), or cause to be deemed removed the Restrictive Notes Legend, from the Convertible Notes, and cause such Convertible Notes to be assigned an unrestricted CUSIP number as a result thereof, in each case, in accordance with the terms of the Convertible Notes Indenture.
Appears in 1 contract
Treatment of Company Indebtedness. The Prior to the Closing Date, the Company shall, as reasonably requested by Parent in writing, (i) deliver (or cause to be delivered) notices of the payoff, prepayment, discharge and shall cause termination of any outstanding Indebtedness or obligations of the Company and each applicable Subsidiary of the Company as required under the Company Credit Agreement and any other Indebtedness for borrowed money of the Company and any of its Subsidiaries to(the amounts outstanding under the Company Credit Agreement and under all other Indebtedness for borrowed money of the Company and its Subsidiaries, deliver all notices and collectively, the “Company Indebtedness Payoff Amount”), (ii) take all other actions within its reasonable control and reasonably requested by Parent that are required toto facilitate the repayment of the Company Indebtedness Payoff Amount, in accordance with including the terms thereof, terminate all termination of the commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on the Closing Date as of substantially concurrently with the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shallTime, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent at least two business days prior to the Closing Date, and shall deliver to Parent on (iii) obtain customary payoff or prior to the Closing Date, an executed payoff letter termination letters or other similar evidence with respect to the Company Credit Agreement (the “Payoff Letter”) in form and substance customary any other Indebtedness for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties borrowed money of the Company and any of its Subsidiaries, in each case, in a form reasonably acceptable to Parent, at least two (2) Business Days prior to the Closing Date (which payoff letters shall be subject to customary conditions). Parent shall (x) irrevocably pay off, or cause to be paid off, at or substantially concurrently with the Effective Time, the Company Indebtedness Payoff Amount (if any) and (y) take all actions within its control to provide all customary cooperation as may be reasonably requested by the Company to assist the Company in connection with its obligations under this Section 8.11. For the avoidance of doubt, (A) the Company and its Subsidiaries securing such Indebtedness and shall have no obligation to make any other obligations secured thereby, shall, upon the payment in respect of the amount set forth in the applicable Company Indebtedness Payoff Letter on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent Amount or in respect of any letters notice delivered under Section (i) of credit issued under this Section 8.11 prior to the Effective Time and (B) the Company shall not be obligated to terminate or discharge (or make or cause to become effective any such action) the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms or any other Indebtedness for borrowed money of the Company Credit Agreement), in no event shall this Section 7.14 require the Company or any of the Company its Subsidiaries prior to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit AgreementTime.
Appears in 1 contract
Samples: Merger Agreement (Denbury Inc)
Treatment of Company Indebtedness. The Company shall, and shall cause the Company its applicable Subsidiaries to, deliver all notices and take all other actions reasonably requested by to Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on prior to the Closing Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent at least two business days three (3) Business Days prior to the Closing Date, and shall deliver to Parent on or prior ) (with drafts being delivered in advance as reasonably requested by Parent) (a) copies of payoff letters (subject to the Closing Date, an executed payoff letter delivery of funds as arranged by Parent) with respect to the Company Credit Agreement (the “Payoff LetterSubject Indebtedness”) in customary form reasonably satisfactory to Parent, which payoff letters shall each (i) indicate the total amount required to be paid to fully satisfy all principal, interest, fees, prepayment premiums, termination costs, penalties, breakage costs and substance customary for transactions any other monetary obligations then due and payable under the Subject Indebtedness as of this type the anticipated Closing Date (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, daily accrual thereafter) (the “Financing AgentPayoff Amount”), which (ii) state that upon receipt of the Payoff Letters together with any Amount under such payoff letter, the Subject Indebtedness and all related release documentation shall, among loan documents shall be terminated (other things, include the payoff amount than provisions that customarily survive) and (iii) provide that all Liens (Encumbrances and guarantees), if any, granted guarantees in connection therewith with the Subject Indebtedness relating to the assets, rights assets and properties of the Company and the Company or its Subsidiaries securing such the obligations under the Subject Indebtedness shall be released and any other obligations secured thereby, shall, terminated upon the payment of the amount set forth in the applicable Payoff Letter Amount on the Closing Date, be released Date and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory (b) all customary lien release documentation relating to the Financing Agent repayment, prepayment, redemption, discharge or termination of all obligations under the Subject Indebtedness and the release of all related pledges, security interests and guarantees with respect to the Subject Indebtedness (including any mortgage releases and termination statements on Form UCC-3 or other releases). The Company shall, and shall cause its applicable Subsidiaries to, provide all cooperation reasonably requested by Parent in respect connection with the treatment of any existing letters of credit issued under (including the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreementreplacement, backstop or cash collateralization thereof), in no event shall this Section 7.14 require the Company or any of the Company Subsidiaries to cause the Credit Facility Terminations to be consummated unless and until the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit Agreement.
Appears in 1 contract
Samples: Merger Agreement (Air Transport Services Group, Inc.)
Treatment of Company Indebtedness. (a) The Company shallshall use, and or shall cause its applicable subsidiaries to use, commercially reasonable efforts to arrange for customary payoff letters and instruments of discharge providing for the Company Subsidiaries topayoff, deliver all notices discharge and take all other actions reasonably requested by Parent that are required to, in accordance with the terms thereof, terminate all commitments outstanding under the Company Credit Agreement, repay in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, termination on the Closing Date as of all then-outstanding indebtedness of the Effective Time Credit Facility (such termination, repayment and releases, the “Credit Facility TerminationsDebt Payoff Letters”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts ) to deliver be delivered to Parent at least two business days no later than three (3) Business Days prior to the Closing Date, and shall deliver, or cause its applicable subsidiaries to deliver to Parent on or prior to the Closing Date, an executed payoff letter with respect to the Company Credit Agreement (the “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Debt Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit AgreementFacility to the holders of such indebtedness (provided that such prepayment and termination notices may be conditional on the occurrence of the Closing).
(i) Parent will be permitted to commence and conduct, in accordance with the terms of the applicable Indenture, offers to purchase, including any “Change of Control Offer” (as such term is defined in the applicable Indenture), or any exchange offer, and to conduct consent solicitations, if any (each, a “Debt Offer” and collectively, the “Debt Offers”), with respect to any or all of the outstanding aggregate principal amount of each series of the Company’s senior unsecured notes (the “Notes”) identified by Parent to the Company in no event writing prior to, on, or after the date hereof on terms that are acceptable to Parent; provided, that any such Debt Offer is consummated substantially simultaneously with or after the Closing using funds provided by Parent. Parent shall this Section 7.14 not be permitted to commence any applicable Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, letter of transmittal or other related documents in connection with the Debt Offer (collectively, the “Debt Offer Documents”) a reasonable period of time in advance of commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on such Debt Offer Documents. Parent will reasonably consult with the Company regarding the timing and commencement of any Debt Offer and any tender deadlines. The closing of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the Parties shall use reasonable best efforts to cause the Debt Offers to close on the Closing Date; provided, that the consummation of a Debt Offer with respect to any series of Notes shall not be a condition to Closing. The Debt Offers shall be conducted in compliance with the applicable Indenture and applicable Law, including SEC rules and regulations, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in compliance with the applicable Indenture and applicable Laws. Parent hereby covenants and agrees to provide (or to cause to be provided) immediately available funds to the Company for the full payment at the Effective Time of all Notes properly tendered and not withdrawn and any related consent payments to the extent required pursuant to the terms of the applicable Debt Offer. The Company shall, and shall cause its subsidiaries to, and shall use reasonable best efforts to cause their respective Representatives to, provide all reasonable cooperation reasonably requested by Parent in connection with the Debt Offer; provided, that nothing herein shall (x) require such cooperation to the extent it would unreasonably interfere with the business or operations of the Company and its subsidiaries, (y) require the Company or any of its subsidiaries to pay any fees or incur any other liability or obligation in connection with the Debt Offer or be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or agree to provide any indemnity in connection with the Debt Offer or (z) require the Company Subsidiaries or its counsel to provide any negative assurance letter with respect to any Debt Offer.
(ii) Subject to the receipt of the requisite consents, the Company shall execute a supplemental indenture to the indentures governing each series of Notes in accordance with the applicable indenture and identified by Parent to the Company in writing prior to, on, or after the date hereof (each, an “Indenture”), amending the terms and provisions of each such Indenture as described in the Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time, and shall use reasonable best efforts to cause the Credit Facility Terminations trustee under each such Indenture to be consummated unless and until enter into such supplemental indenture prior to or substantially simultaneously with the Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed Closing; provided, however, that in no event shall the Company or any of its officers, directors or other Representatives have any obligation to authorize, adopt or execute any amendments or other agreement that would become effective prior to the Effective Time. The Company shall, and shall cause its subsidiaries to, and shall use reasonable best efforts to cause their respective Representatives to, provide all cooperation reasonably requested by Parent in connection with the execution of supplemental indentures; provided, that nothing herein shall require the Company Subsidiaries to use funds on their balance sheet) or any of its subsidiaries to pay any fees or incur any other liability or obligation in full connection with the then-Debt Offer or be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or agree to provide any indemnity in connection with the Debt Offer. If requested by Parent, the Company’s counsel shall provide all customary legal opinions required in connection with the transactions contemplated by this Section 6.11 to the extent such legal opinion is required to be delivered prior to the Closing Date. Notwithstanding the foregoing, in no event shall the Company or its legal counsel be required to give an opinion with respect to a Debt Offer that in the opinion of the Company or its legal counsel does not comply with applicable Laws or the applicable Indenture, or an opinion with respect to financing by the Parent.
(iii) If requested by Parent in writing, in lieu of Parent commencing a Debt Offer for any series of Notes, the Company shall use its commercially reasonable efforts, to the extent permitted by such series of Notes and the applicable Indenture, to (A) substantially simultaneously with the Effective Time, issue a notice of optional redemption for all of the outstanding aggregate principal amount of such series of Notes, pursuant to the redemption provisions of the applicable Indenture and accrued (B) take any other actions at and unpaid interest after the Effective Time reasonably requested by Parent to facilitate the satisfaction and fees discharge of such series of Notes pursuant to the satisfaction and discharge provisions of the applicable Indenture and the other provisions of such Indenture applicable thereto; provided, that prior to the Company’s being required to take any of the actions described in clauses (A) and (B) above, Parent shall have, or shall have caused to be, deposited with the trustee under the applicable Indenture sufficient funds to effect such redemption and satisfaction and discharge. The redemption and satisfaction and discharge of any series of Notes pursuant to the preceding sentence are referred to collectively as the “Discharge” of such series of Notes. The Company Credit Agreementshall, and shall cause its subsidiaries to, and shall use reasonable best efforts to cause their respective Representatives to, provide all reasonable cooperation reasonably requested by Parent in connection with the Discharge of any series of Notes identified to the Company by Parent in writing at any time; provided, that nothing herein shall require the Company or any of its subsidiaries to pay any fees or incur any other liability or obligation in connection with the Debt Offer or be required to bear any cost or expense or to pay any commitment or other similar fee or make any other payment or agree to provide any indemnity in connection with the Debt Offer.
(iv) Parent shall promptly, upon request by the Company, reimburse the Company following either the Closing or the termination of this Agreement for (A) all reasonable and documented out-of-pocket costs (including reasonable outside attorneys’ fees and expenses) to the extent incurred by the Company, any of the subsidiaries or their Representatives in connection with the Debt Offers or Discharge in respect of any series of Notes and (B) any out-of-pocket costs incurred by the Company, any of its subsidiaries or their Representatives to the trustee or its counsel pursuant to the applicable Indenture in connection with the Debt Offers or Discharge in respect of any series of Notes. Parent shall indemnify and hold harmless the Company and its subsidiaries and their respective Representatives from and against any and all losses suffered or incurred by them in connection with any action taken by them in connection with the performance of their respective obligations under this Section 6.11(b) (including any action taken in accordance with this Section 6.11(b)) except to the extent suffered or incurred as a result of the bad faith, gross negligence, willful misconduct or material breach of this Agreement by the Company or any of its subsidiaries or, in each case, their respective Affiliates and Representatives.
(v) At the written request of Parent, prior to the retirement of any Notes pursuant to this Section 6.11(b), the Company shall negotiate the contemporaneous unwind of interest rate swaps relating to the Notes.
Appears in 1 contract
Treatment of Company Indebtedness. The Company shall, and shall cause the Company each of its Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent the Purchaser that are required to, to facilitate in accordance with the terms thereof, terminate thereof the termination of all commitments outstanding under each of the Company Credit AgreementExisting Financing Instruments and the Accounts Receivable Purchase Program, repay the repayment in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, guarantees in connection therewith, in each case, therewith on the Closing Effective Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility Terminations”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company each of its Subsidiaries to, use reasonable best efforts to deliver to Parent the Purchaser at least two business days three (3) Business Days prior to the Closing Date(with drafts being delivered in advance as reasonably requested by the Purchaser), and shall deliver to Parent on or prior to the Closing Date, an executed payoff letter letters (and similar instruments), in each case, with respect to each of the Company Credit Agreement Existing Financing Instruments and the Accounts Receivable Purchase Program (the each, a “Payoff Letter”) and all related release documentation, in each case, in form and substance customary for transactions of this type (and drafts reasonably in advance thereof)type, from the applicable agent on behalf of the Persons to whom such Indebtedness is owed (or, if there is no such agent, from the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company its Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable Payoff Letter on the Closing Effective Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory Notwithstanding anything herein to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement)contrary, in no event shall this Section 7.14 4.10 require the Company or any of the Company its Subsidiaries to cause the Credit Facility Terminations to be consummated effective unless and until the Effective Time has occurred and Parent the Purchaser has provided or caused to be provided to the Company or the Company its Subsidiaries funds (or Parent has directed the Purchaser and the Company have agreed that the Company or any of the Company Company's Subsidiaries to shall use funds on their balance sheetsheet at Closing for such purpose; provided that the Company shall not unreasonably withhold, condition or delay any such agreement) to pay in full the then-outstanding principal amount amounts required pursuant to the terms of and accrued and unpaid interest and fees under the Company Credit AgreementPayoff Letters.
Appears in 1 contract
Treatment of Company Indebtedness. (1) The Company shall, and shall cause the Company its Subsidiaries to, deliver all notices and take all other actions reasonably requested by the Parent that are required to, to facilitate in accordance with the terms thereof, terminate thereof the termination of all commitments outstanding under the Company Credit AgreementFacility, repay the repayment in full of all obligations, if any, outstanding thereunder, and facilitate the release of all Liens, if any, securing such obligations, and the release of all guarantees, if any, in connection therewith, in each case, on the Closing Effective Date as of the Effective Time (such termination, repayment and releases, the “Credit Facility TerminationsTermination”); provided that, for the avoidance of doubt, the Company may rescind any such notice in accordance with the terms of the Company Credit Agreement if the Effective Time does not occur on the prepayment and termination date specified in such notice. In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company its Subsidiaries to, use reasonable best efforts to deliver to the Parent at least two business days (2) Business Days prior to the Closing Date, and shall deliver to Parent on or prior to the Closing anticipated Effective Date, an executed payoff letter with respect to the Company Credit Agreement Facility (the a “Payoff Letter”) in form and substance customary for transactions of this type (and drafts reasonably in advance thereof), from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, (the “Financing Agent”), which Payoff Letters Letter together with any related release documentation shall, among other things, include the payoff amount and provide that all Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company its Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the payment of the amount set forth in the applicable a Payoff Letter on the Closing Effective Date, be released and terminated. Parent and Xxxxxx Sub shall use reasonable best efforts to enter arrangements reasonably satisfactory Notwithstanding anything herein to the Financing Agent in respect of any letters of credit issued under the Company Credit Agreement. Notwithstanding anything in this Agreement to the contrary (but subject to the requirement to deliver prepayment and termination notices by the time required by and otherwise in accordance with the terms of the Company Credit Agreement)contrary, in no event shall this Section 7.14 4.15(1) require the Company or any of the Company its Subsidiaries to cause the Credit Facility Terminations Termination to be consummated effective unless and until the Effective Time has occurred and the Parent has provided or caused to be provided to the Company or the Company its Subsidiaries funds (or the Parent has directed the Company or any of the Company its Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Credit Facility.
(2) To the extent required in order to consummate the transactions contemplated by this Agreement, upon written request of the Parent, the Company Credit shall, and shall cause its Subsidiaries to, as applicable, (a) execute and deliver, or cause to be executed and delivered, in each case, to the trustee under the Trust Indenture at or prior to the Effective Time, such documents or instruments as are required to comply with the requirements of the Trust Indenture and the Voting and Support Agreements in connection with the transactions contemplated by this Agreement, and (b) provide all assistance reasonably requested by the Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take any other actions reasonably requested by the Parent (which shall not require any payment by the Company or its Subsidiaries) that are customary or necessary in connection therewith, including the execution and delivery by the Company, its Subsidiaries or their respective Representatives of customary officers’ certificates, supplemental indentures and legal opinions to the trustee under the Trust Indenture, to the extent such certificates, supplemental indentures and opinions are required thereby. Notwithstanding the foregoing, neither Company nor its Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Effective Time. To the extent required in order to consummate the transactions contemplated by this Agreement, the Parent and the Purchaser, as applicable, shall, prior to or contemporaneously with, and conditioned upon, the consummation of the transactions contemplated by this Agreement, execute such instruments and do such things as are necessary, in the reasonable determination of the Parent, to facilitate the compliance by the Company with Section 11.1 of the Trust Indenture.
Appears in 1 contract
Samples: Arrangement Agreement (LKQ Corp)
