Financial Ability to Perform. (a) Purchaser is a party to and has accepted a fully executed commitment letter dated May 1, 2023 (the “Equity Commitment Letter” from certain Persons (collectively, the “Equity Investors”) pursuant to which the Equity Investors have agreed and committed, subject to the terms and conditions thereof, to invest in Purchaser the Aggregate Purchase Price. The Equity Commitment Letter provides that Seller is a third-party beneficiary thereof and is entitled to enforce each such agreement. The equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing.” Purchaser has delivered to Seller a true, complete and correct copy of the Equity Commitment Letter. The Equity Commitment Letter constitutes the legal, valid, binding and enforceable obligations of Purchaser and, to the Knowledge of Purchaser, all other parties thereto and is in full force and effect. To the Knowledge of Purchaser, no event has occurred that, with or without notice, lapse of time, or both, could reasonably be expected to constitute a default, breach or a failure to satisfy a condition precedent on the part of Purchaser under the terms and conditions of the Equity Commitment Letter. The Equity Commitment Letter has not been modified, amended or altered. Assuming the Equity Financing is funded in accordance with the terms of the Equity Commitment Letter and assuming the satisfaction or, if permissible, waiver of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions to be satisfied at the Closing, but subject to the satisfaction or, if permissible, written waiver of such conditions), Purchaser will 49 have at the Closing sufficient available cash on hand necessary to consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein. (b) In no event shall the receipt or availability of any funds or financing by Purchaser or any Affiliate be a condition to any of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Financial Ability to Perform. (a) The Purchaser is a party has delivered to the Sellers true, correct and has accepted a fully executed complete copies of the Purchaser’s commitment letter dated May 1letters, 2023 (the “Equity Commitment Letter” from certain Persons related fee letters, engagement letters and all related agreements (collectively, the “Equity InvestorsDebt Financing Commitments”) ), pursuant to which certain lenders who are parties to such Debt Financing Commitments (the Equity Investors “Lenders”) have agreed and committed, subject committed to provide up to an aggregate of not less than $200 million of debt financing to the terms Purchaser and conditions thereof, its Affiliates in order to invest in Purchaser finance the Aggregate Purchase Pricetransactions contemplated by this Agreement. The Equity Commitment Letter provides that Seller is a third-party beneficiary thereof and is entitled to enforce each such agreement. The equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing.” Purchaser has delivered to Seller a true, complete and correct copy As of the Equity Commitment Letter. The Equity Commitment Letter constitutes Closing Date, assuming the legal, valid, binding and enforceable obligations of Purchaser and, to the Knowledge of Purchaser, all other parties thereto and is in full force and effect. To the Knowledge of Purchaser, no event has occurred that, with or without notice, lapse of time, or both, could reasonably be expected to constitute a default, breach or a failure to satisfy a condition precedent on the part of Purchaser under the terms and conditions consummations of the Equity Commitment Letter. The Equity Commitment Letter has not been modifiedfinancing transactions contemplated by the Debt Financing Commitments, amended or altered. Assuming the Equity Financing is funded in accordance with the terms Purchaser and its Affiliates will have sufficient funds available (as a result of the Equity Commitment Letter and assuming the satisfaction or, if permissible, waiver of the conditions debt financing set forth in Section 7.1 the Debt Financing Commitments and Section 7.2 (other than those conditions otherwise) to be satisfied at enable the Closing, but subject to the satisfaction or, if permissible, written waiver of such conditions), Purchaser will 49 have at the Closing sufficient available cash on hand necessary and its Affiliates to consummate the transactions contemplated by this Agreement on Agreement. As of the terms and subject date hereof, the Debt Financing Commitments delivered to the conditions set forth herein.
(b) In Sellers are in full force and effect. There are no event shall other agreements, contracts, documents or other instruments in effect relating to the receipt or availability Debt Financing Commitments that subject the commitments undertaken therein to any condition not expressly provided for therein. The aggregate proceeds of any the financings to be provided pursuant to the Debt Financing Commitments together with other funds or financing by available to the Purchaser or any Affiliate will be sufficient to pay the Final Purchase Price and all fees and expenses required to be paid as a condition to the consummation of such financings. The Purchaser has no reason to believe, as of the date hereof, that such aggregate proceeds shall not be available or that the Debt Financing Commitments shall not be funded, and the Purchaser has not made any of Purchaser’s obligations under this Agreementmaterial misrepresentation with respect to the Purchaser in connection with obtaining the Debt Financing Commitments.
Appears in 1 contract
Sources: Asset and Stock Purchase Agreement (Phelps Dodge Corp)
Financial Ability to Perform. (a) Concurrently with the execution hereof, Purchaser is has delivered to the Company a party to complete and has accepted a fully correct copy of the executed equity commitment letter dated May 1(the “Commitment Letter”) from Arsenal Capital Partners IV LP (the “Sponsor”) pursuant to which, 2023 and subject to the terms and conditions of which, the Sponsor has agreed to provide certain equity financing (the “Equity Financing”) to Purchaser in connection with the Transactions. The obligation to fund the commitment under the Commitment Letter is a binding and enforceable obligation of Purchaser and, to Purchaser’s knowledge, the Sponsor (except as the enforceability thereof may be limited by the General Enforceability Exceptions) and is not subject to any condition, other than the conditions expressly set forth in the Commitment Letter” from certain Persons (collectively. The Commitment Letter has been duly executed by Purchaser and, to Purchaser’s knowledge, the Sponsor, and the Commitment Letter has not been modified or amended in any respect as of the date of this Agreement. The proceeds of the Equity Financing will be sufficient to fund the amounts payable by Purchaser hereunder on the Closing Date.
(b) Concurrently with the execution of this Agreement, Purchaser has delivered to Seller a limited guarantee (the “Equity InvestorsGuarantee”) from the Sponsor guaranteeing certain of Purchaser’s obligations pursuant to which the Equity Investors have agreed and committedthis Agreement, subject to the terms and conditions thereof, to invest in Purchaser the Aggregate Purchase Priceherein and therein. The Equity Commitment Letter provides that Seller Guarantee is a third-party beneficiary thereof legal, valid and is entitled to enforce each such agreement. The equity financing committed pursuant to binding obligation of the Equity Commitment Letter is referred to in this Agreement Sponsor and enforceable (except as the “Equity Financing.” Purchaser has delivered to Seller a true, complete and correct copy of enforceability thereof may be limited by the Equity Commitment Letter. The Equity Commitment Letter constitutes General Enforceability Exceptions) against the legal, valid, binding and enforceable obligations of Purchaser and, to the Knowledge of Purchaser, all other parties thereto and is in full force and effect. To the Knowledge of Purchaser, no event has occurred that, with or without notice, lapse of time, or both, could reasonably be expected to constitute a default, breach or a failure to satisfy a condition precedent on the part of Purchaser under the terms and conditions of the Equity Commitment Letter. The Equity Commitment Letter has not been modified, amended or altered. Assuming the Equity Financing is funded Sponsor in accordance with the terms of the Equity Commitment Letter and assuming the satisfaction or, if permissible, waiver of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions to be satisfied at the Closing, but subject to the satisfaction or, if permissible, written waiver of such conditions), Purchaser will 49 have at the Closing sufficient available cash on hand necessary to consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth hereinits terms.
(b) In no event shall the receipt or availability of any funds or financing by Purchaser or any Affiliate be a condition to any of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Financial Ability to Perform. (a) Purchaser is a party to and has accepted a fully executed commitment letter letter, dated May 1as of the date hereof (together with any fee letters executed in connection therewith, 2023 (all exhibits and schedules thereto, as amended, restated, waived, supplemented, replaced, extended or otherwise modified from time to time in accordance with the “Equity terms herein, the "Debt Commitment Letter” from certain Persons ") by and among the financial institutions listed on the signature pages thereof (collectively, the “Equity Investors”"Lenders") and Purchaser pursuant to which the Equity Investors Lenders have agreed and committedagreed, subject solely to the terms and conditions thereof, to provide debt financing in the amounts set forth therein. The debt financing committed pursuant to the Debt Commitment Letter is collectively referred to in this Agreement as the "Debt Financing".
(b) Purchaser is a party to a fully executed equity commitment letter, dated as of the date hereof (the "Equity Commitment Letter" and, together with the Debt Commitment Letter, the "Commitment Letters"), by and among the Persons identified therein (collectively, the "Equity Investors") and Purchaser, pursuant to which the Equity Investors have agreed, on the terms and subject solely to the conditions set forth therein, to invest in Purchaser the Aggregate Purchase Priceamounts set forth therein. The Equity Commitment Letter provides that Seller is a an express third-party beneficiary thereof and is entitled to enforce each such agreementagreement on the terms thereof. The equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing.” Purchaser has delivered to Seller a true, complete and correct copy of the Equity Commitment Letter. The Equity Commitment Letter constitutes the legal, valid, binding and enforceable obligations of Purchaser and, to the Knowledge of Purchaser, all other parties thereto and is in full force and effect. To the Knowledge of Purchaser, no event has occurred that, with or without notice, lapse of time, or both, could reasonably be expected to constitute a default, breach or a failure to satisfy a condition precedent on the part of Purchaser under the terms and conditions of the Equity Commitment Letter. The Equity Commitment Letter has not been modified, amended or altered. Assuming the Equity Financing is funded in accordance with the terms of the Equity Commitment Letter and assuming the satisfaction or, if permissible, waiver of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions to be satisfied at the Closing, but subject to the satisfaction or, if permissible, written waiver of such conditions), Purchaser will 49 have at the Closing sufficient available cash on hand necessary to consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth herein.
(b) In no event shall the receipt or availability of any funds or financing by Purchaser or any Affiliate be a condition to any of Purchaser’s obligations under this Agreement.the
Appears in 1 contract
Financial Ability to Perform. (a) Concurrently with the execution hereof, Purchaser is has delivered to the Company a party to complete and has accepted a fully correct copy of the executed equity commitment letter dated May 1(the “Commitment Letter”) from Arsenal Capital Partners IV LP (the “Sponsor”) pursuant to which, 2023 and subject to the terms and conditions of which, the Sponsor has agreed to provide certain equity financing (the “Equity Financing”) to Purchaser in connection with the Transactions. The obligation to fund the commitment under the Commitment Letter is a binding and enforceable obligation of Purchaser and, to Purchaser’s knowledge, the Sponsor (except as the enforceability thereof may be limited by the General Enforceability Exceptions) and is not subject to any condition, other than the conditions expressly set forth in the Commitment Letter” from certain Persons (collectively. The Commitment Letter has been duly executed by Purchaser and, to Purchaser’s knowledge, the Sponsor, and the Commitment Letter has not been modified or amended in any respect as of the date of this Agreement. The proceeds of the Equity Financing will be sufficient to fund the amounts payable by Purchaser hereunder on the Closing Date. (b) Concurrently with the execution of this Agreement, Purchaser has delivered to Seller a limited guarantee (the “Equity InvestorsGuarantee”) from the Sponsor guaranteeing certain of Purchaser’s obligations pursuant to which the Equity Investors have agreed and committedthis Agreement, subject to the terms and conditions thereof, to invest in Purchaser the Aggregate Purchase Priceherein and therein. The Equity Commitment Letter provides that Seller Guarantee is a third-party beneficiary thereof legal, valid and is entitled to enforce each such agreement. The equity financing committed pursuant to binding obligation of the Equity Commitment Letter is referred to in this Agreement Sponsor and enforceable (except as the “Equity Financing.” Purchaser has delivered to Seller a true, complete and correct copy of enforceability thereof may be limited by the Equity Commitment Letter. The Equity Commitment Letter constitutes General Enforceability Exceptions) against the legal, valid, binding and enforceable obligations of Purchaser and, to the Knowledge of Purchaser, all other parties thereto and is in full force and effect. To the Knowledge of Purchaser, no event has occurred that, with or without notice, lapse of time, or both, could reasonably be expected to constitute a default, breach or a failure to satisfy a condition precedent on the part of Purchaser under the terms and conditions of the Equity Commitment Letter. The Equity Commitment Letter has not been modified, amended or altered. Assuming the Equity Financing is funded Sponsor in accordance with the terms of the Equity Commitment Letter and assuming the satisfaction or, if permissible, waiver of the conditions set forth in Section 7.1 and Section 7.2 (other than those conditions to be satisfied at the Closing, but subject to the satisfaction or, if permissible, written waiver of such conditions), Purchaser will 49 have at the Closing sufficient available cash on hand necessary to consummate the transactions contemplated by this Agreement on the terms and subject to the conditions set forth hereinits terms.
(b) In no event shall the receipt or availability of any funds or financing by Purchaser or any Affiliate be a condition to any of Purchaser’s obligations under this Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement