Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing. (ii) As of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments. (iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due. (iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Image Entertainment Inc), Merger Agreement (BTP Acquisition Company, LLC)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent Group has delivered to the Company true, accurate true and complete correct copies of executed financing letters with respect to the Debt Financing debt financing of US$505,000,000 (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As of the date hereof, none None of the Financing Commitments has been amended or modified prior to the date of this Agreement, and the respective financing commitments contained in the Financing Commitments have not been withdrawn or rescinded in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms financing contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand As of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all date of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, no event (including, without limitation, (a) the failure to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related commitment fees and expenses arising out of or associated with this Agreement, other fees required by the Merger, or any of the transactions contemplated hereby when due.
(ivFinancial Commitments) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent Parent, Holding Company, Holdings or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied .
(iv) The aggregate proceeds contemplated by it contained in the Financing Commitments. , together with (x) cash currently on hand and available to Parent and/or Group and (y) cash Parent Group reasonably believes is available to it from other sources of debt and equity financing ((x) and (y) in the aggregate, the “Available Cash”), are sufficient (A) to pay (or provide the funds for the Surviving Corporation to pay) the aggregate Merger Sub have fully paid Consideration, the aggregate Warrant Consideration and Outstanding Dividends, (B) to pay (or provide the funds for the Surviving Corporation to pay) all amounts contemplated by Sections 2.01(g), (h) and (i) when due, (C) to refinance any and all commitment fees indebtedness or other obligation of the Company which may become due, and to finance any “change of control” offer that may be required under any indebtedness of the Company, in each case, as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (D) to pay all related fees required by and expenses, arising solely out of the Financing Commitments to be paid on or before Merger when due.
(v) As of the date of this Agreement, Parent Group does not have any reason to believe that any of the terms of or conditions to the Financing Commitments will not be satisfied on a timely basis or that the full amount of the financing contained in the Financing Commitments and the Available Cash will not be available to the Parent Group on the Closing Date.
Appears in 2 contracts
Sources: Merger Agreement (Northwestern Corp), Merger Agreement (Northwestern Corp)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of revised executed financing letters with respect to the Debt Financing (the “Revised Debt Financing Commitments”) and revised equity commitment letters with respect to the Equity Financing (the “Revised Equity Financing Commitments” and, together with the Revised Debt Financing Commitments, the “Revised Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As of the date hereof, none of the Revised Financing Commitments has been amended or modified in any respect, and none of the Revised Financing Commitments has been withdrawn or terminated in any respect. Each of the Revised Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Revised Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Revised Financing Commitments, other than as set forth in, or contemplated by, the Revised Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Revised Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Revised Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Revised Financing Commitments to be paid on or before the date of this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc)
Financing Arrangements. (ia) It is contemplated by the parties that the Purchaser will provide and/or obtain construction and permanent mortgage financing from its internal funds and/or from such lenders as Purchaser deems appropriate in Purchaser's discretion so as to provide funds to Seller for the timely payment of all costs and expenses associated with the purchase of the Premises and construction of the Facility through Physical Completion. The selection of the lenders and the type of financing which may be obtained from such lenders or the decision to finance the construction internally shall be within the control and discretion of the Purchaser prior to Physical Completion; provided that any such financing shall, by its terms, allow Purchaser to comply with the payment terms of this Agreement.
(b) The financing of Seller and Purchaser also contemplate that the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) Premises and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” andFacility, together with the Debt Financing Commitmentsall fixtures, the “Financing Commitments”)furnishing, pursuant to whichequipment, and subject articles of personal property now owned or hereafter acquired by the Purchaser which are or may be attached to the terms and conditions thereof, the parties thereto have committed to provide Parent or used in connection with the FinancingPremises or Facility, together with any and all replacements thereto and substitutions therefor, and all proceeds thereof and all present and future rents, issues, leases, and profits of the Premises and Facility will serve as security for the payment obligations to any lenders, and that the Purchaser will be the principal obligor for the repayment of all financial obligations thereunder. Purchaser therefore, agrees to execute and deliver all commitments, promissory notes, mortgages, collateral assignments, guaranties and all other instruments, agreements, documents, certificates, affidavits, and other writings required to be executed by any lender in connection with such financing.
(iic) As Seller agrees to deliver draw requests, lien waivers, construction status reports, certificates and other documentation in such form and on such terms as may be reasonably requested by Purchaser's lender(s) and such other documentation of Seller's costs as may be required by governmental bodies in connection with the development or construction of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this AgreementFacility, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation reasonable documentation of the Company or Parent Seller's costs which may become due as a result of this Agreement, be required by governmental bodies auditing the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when dueFacility.
(ivd) No event has occurred which, with or without notice, lapse of time or both, would constitute Purchaser shall receive a default or breach on credit against the part of Parent or Merger Sub under any term or condition of Purchase Price in an amount equal to the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable financing allowance to satisfy on a timely basis any term or condition of closing to be satisfied by it contained the extent included in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this AgreementMCE.
Appears in 1 contract
Financing Arrangements. (ia) The financing Parent has delivered to the Company a true, correct and complete copy of the transactions contemplated hereby will consist fully executed equity commitment letter as of a combination of the date hereof (together with all exhibits, annexes, schedules and term sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the Agreement Date, the “Equity Commitment Letter”) from the Investor pursuant to which the Investor has agreed to make an equity financing investment in Parent, subject to the terms and conditions therein, in cash in the aggregate amount set forth therein (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(iib) As of the date hereof, none the Equity Commitment Letter is in full force and effect and constitutes the valid, binding and enforceable obligation of Parent, Merger Sub and the Sponsor, as applicable, and, to the knowledge of Parent, the other party thereto, enforceable in accordance with their terms (subject to the Enforceability Limitations). As of the Financing Commitments date hereof, (i) the Equity Commitment Letter has not been amended or modified in any respectmanner, and none (ii) the commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent, Merger Sub or the Investor or, to the knowledge of Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent, Merger Sub or the Investor or, to the knowledge of Parent, any other party thereto.
(c) The net proceeds of the Financing Commitments has been withdrawn or terminated Equity Financing, when funded in any respect. Each of accordance with the Financing CommitmentsEquity Commitment Letter will be, in the form so deliveredaggregate, is sufficient to make the payment of all amounts payable pursuant to Article I and Article II in connection with or as a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding result of the full amount of Offer and the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing CommitmentsMerger.
(iiid) The aggregate proceeds from 11th Amendment Effective Date is subject solely to the Financing, together with cash on hand of conditions set forth in the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for 11th Amendment. Assuming the satisfaction of all the conditions set forth in Section 7.1 and the performance by the Company of Parent’s and Merger Sub’s financial its obligations under this Agreement, including, without limitation, (a) Parent is not aware of any fact or occurrence that would reasonably be expected to pay (or provide cause the funds for conditions to the Surviving Corporation 11th Amendment Effective Date to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when duenot be satisfied.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (TherapeuticsMD, Inc.)
Financing Arrangements. (a) Parent shall (i) The financing of use its reasonable best efforts to obtain and consummate the transactions contemplated hereby will consist of a combination of equity financing (Bank Financing described in the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Bank Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to Commitments on the terms and conditions thereofdescribed in the Bank Financing Commitments (including the exercise of so-called “flex” provisions in the related fee letter) as promptly as practicable (taking into account the timing of the Marketing Period and the Closing). Parent shall keep the Company informed on a reasonably current basis in reasonable detail of any material developments concerning the status of the Bank Financing. Parent shall provide the Company, upon reasonable request, with copies of any Bank Financing agreements and such other information and documentation regarding the parties thereto have committed Bank Financing as shall be reasonably necessary to provide Parent with allow the FinancingCompany to monitor the progress of such financing activities.
(iib) As of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, Notwithstanding anything to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contrary contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, includingeach of the parties hereto: (i) agrees that it will not bring or support any Person, without limitationor permit any of its Affiliates to bring or support any Person, in any action, suit, proceeding, cause of action, claim, cross-claim or third-party claim of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Person that has committed or subsequently commits to provide or otherwise enters into agreements in connection with providing the Bank Financing to Parent or any of its Affiliates (a) to pay (or provide the funds “Bank Financing Sources,” which defined term for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result purposes of this Agreementprovision shall include Bank of America, N.A., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ and ▇▇▇▇▇ Incorporated, ▇▇▇▇▇ Fargo Bank, National Association and ▇▇▇▇▇ Fargo Securities, LLC and their respective former, current and future Affiliates, equityholders, members, partners, controlling persons, officers, directors, employees, agents, advisors and representatives involved in the Merger, Bank Financing) in any way relating to this 61 Agreement or any of the transactions contemplated herebyby this Agreement, and (c) to pay all related fees and expenses including, but not limited to, any dispute arising out of or associated with relating in any way to the Bank Financing Commitments or the performance thereof or the financings contemplated thereby, in any forum other than the federal and New York State courts located in the Borough of Manhattan within the City of New York; (ii) agrees that, except as specifically set forth in the Bank Financing Commitments, all claims or causes of action (whether at law, in equity, in contract, in tort or otherwise) against any of the Bank Financing Sources in any way relating to the Bank Financing Commitments or the performance thereof or the financings contemplated thereby, shall be exclusively governed by, and construed in accordance with, the internal laws of the State of New York, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of laws of another jurisdiction; and (iii) hereby irrevocably and unconditionally waives any right such party may have to a trial by jury in respect of any litigation (whether at law or in equity, in contract, in tort or otherwise) directly or indirectly arising out of or relating in any way to the Bank Financing Commitments or the performance thereof or the financings contemplated thereby. Notwithstanding anything to the contrary contained in this Agreement, (A) the MergerCompany and the Holder Representative (on behalf of itself and the Holders) and their respective Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders shall not have any rights or claims against any Bank Financing Source in any way relating to this Agreement or any of the transactions contemplated by this Agreement, or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Bank Financing Commitments or the performance thereof or the financings contemplated thereby, whether at law or in equity, in contract, in tort or otherwise and (B) no Bank Financing Source shall have any liability (whether in contract, in tort or otherwise) to the Company, the Holder Representative, any equityholders of the Company and their respective Subsidiaries, Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders for any obligations or liabilities of any party hereto under this Agreement or for any claim based on, in respect of, or by reason of, the transactions contemplated hereby when dueand thereby or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Bank Financing Commitments or the performance thereof or the financings contemplated thereby, whether at law or in equity, in contract, in tort or otherwise. Notwithstanding anything to the contrary contained in this Agreement, the Bank Financing Sources are intended third-party beneficiaries of, and shall be entitled to the protections of this provision to the same extent as if the Bank Financing Sources were parties to this Agreement. This Section 5.9(b) may not be amended, modified or supplemented, or any of its provisions waived, without the written consent of the Bank Financing Sources, which consent may be granted or withheld in the sole discretion of the Bank Financing Sources.
(ivc) No event has occurred whichFor clarification, the Financing is not a condition to Closing.
(d) By September 24, 2014, Parent will execute and deliver to the Company documentation providing for an interim line of credit for the Company or its Subsidiary to borrow from Parent or another financing source $15,000,000 on the terms of the draft documentation dated as of August 21, 2014 for the proposed Amegy facility furnished to Parent, with only such changes as are required to effectuate the substitution of Parent as the lender thereunder, and such other changes as may be mutually agreed by the parties (the “Interim Line 62 of Credit”). If Parent does not execute and deliver, or without noticecause another financing source to execute and deliver, lapse to the Company the documentation governing the Interim Line of time Credit by September 24, 2014, the Company may secure financing from Amegy or both, another financing source on terms (including the collateral package) substantially similar to those contemplated by the above-referenced draft documentation so long as such financing can be repaid in full at the Closing by the ongoing line of credit described below. Parent acknowledges that the Interim Line of Credit and funding thereunder is critical to the Company’s and its Subsidiary’s ability to operate in the ordinary course and that the Company would constitute a default or have entered into arrangements with Amegy to provide such financing in the absence of Parent’s covenant to provide same under this Section 5.9(d). Parent’s breach of its obligation to provide the Interim Line of Credit and funding on the part terms thereof would cause the condition in Section 7.2(a)(ii) not to be satisfied. At the Closing, Parent will execute and deliver to the Surviving Company documentation that refinances the Interim Line of Credit and allows for borrowings from Parent or Merger Sub under any term or condition another financing source equal to $75,000,000 on the terms of the Financing Commitmentsdraft documentation dated as of August 21, and neither 2014 furnished to Parent, provided, however that the Surviving Company shall not be permitted to borrow in excess of $15,000,000 thereunder prior to January 2, 2015. If the Closing occurs, Parent nor Merger Sub reasonably believes that it will be unable required to satisfy on a timely basis any term or condition provide the financing described herein through the end of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement2017 Earnout Period.
Appears in 1 contract
Sources: Merger Agreement (Green Dot Corp)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing Parent has received and executed commitment letters (the “Equity Financing”"FINANCING LETTERS") dated as of January 30, 2004 from National City Bank, Toronto Dominion Investments, Inc. and debt financing Perseus, L.▇.▇. (the “Debt Financing”, and together with the Equity Financing, the “Financing”▇▇▇ "▇▇▇▇▇▇▇"). Parent ▇ ▇▇ue, complete and fully-executed copy of each Financing Letter has delivered been furnished to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As of the date hereof, none Company. Each of the Financing Commitments Letters is in full force and effect and has not been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing commitment fees required to be provided by Parent for the consummation of the transactions contemplated herebypaid thereunder have been paid in full or will be duly paid in full when due, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No no event has occurred which, which (with or without notice, lapse of time or both, ) would constitute a default or breach thereunder on the part of Parent or Parent, Merger Sub under any term or condition or, to the knowledge of Parent, the Financing CommitmentsLenders, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained as the case may be. Except as set forth in the Financing Commitments. Parent and/or Letters, the Lenders have not advised Parent, Merger Sub have fully paid or any and all commitment fees or other fees required of their respective Affiliates of any facts which cause them to believe the financings contemplated by the Financing Commitments Letters will not be consummated substantially in accordance with the terms thereof. Assuming the satisfaction of the conditions contained in Sections 7.3(a) and (b), the aggregate proceeds of the financings contemplated by the Financing Letters, when taken together with the cash to be made available to Parent at the Closing, and the available cash of Merger Sub, the Company and its Subsidiaries, are sufficient to pay the aggregate Per Share Amount for the Shares pursuant to Article II, to pay all amounts required to be paid on or before to holders of Company Stock Options and Company Warrants hereunder, to refinance the date Indebtedness of the Company and its Subsidiaries that may become due as a result of the transactions contemplated by this AgreementAgreement (assuming the accuracy of the condition contained in Section 7.3(g) hereof), to pay all related fees and expenses and to provide working capital and funding for general corporate needs of Parent, the Surviving Corporation and their respective Subsidiaries (such financing, the "FINANCING").
Appears in 1 contract
Financing Arrangements. The Purchasers have delivered to the Fund true and complete copies of the commitment letters, each dated as of the date hereof, to BBCL Holdings L.P. from (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing ▇▇▇▇▇ Fargo Foothill, LLC, (ii) Ares Capital Corporation, S.A.C. Domestic Investments, L.P., ▇▇▇▇▇ Fargo Bank, National Association and (iii) Ares Capital Corporation, Glitnir banki hf, S.A.C. Domestic Investments, L.P. and Besford Limited (collectively the “Equity FinancingDebt Financing Commitment Letters”) and debt financing pursuant to which the lenders party thereto have committed, subject to the terms thereof, to lend the amounts set forth therein (the “Debt Financing”) subject to such redaction as is necessary or desirable, and together with in the Equity Financingsole opinion of the Purchasers, to maintain the “Financing”). Parent has delivered to confidentiality of the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject provisions thereof relating to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) of such financing. As of the date hereof, none of this Agreement: (i) the Debt Financing Commitments has Commitment Letters have not been amended or modified in any respect, a manner adverse to the Purchasers and none of (ii) the commitments contained in the Debt Financing Commitments has Commitment Letters have not been withdrawn or terminated rescinded in any respect. Each of the Debt Financing CommitmentsCommitment Letters, in the form so delivered, is in full force and effect as of the date of this Agreement and is a legal, valid and binding obligation of Parent the Purchasers and, to the Knowledge knowledge of Parentthe Purchasers, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding As of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result date of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) Purchasers have no reason to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes believe that it they will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Debt Financing CommitmentsCommitment Letters. Parent and/or Merger Sub The Purchasers have fully paid any and all commitment fees or other fees incurred in connection with the Debt Financing Commitment Letters to the extent required by the Financing Commitments to be paid on or before prior to the date of this Agreementhereof. The Fund shall and shall cause its Subsidiaries to keep confidential and shall not disclose the Debt Financing Commitment Letters or any term thereof, except as may be required by applicable laws.
Appears in 1 contract
Sources: Business Acquisition Agreement (Bumble Bee Capital Corp.)
Financing Arrangements. (i) The financing Parent or a subsidiary of the transactions contemplated hereby will consist of Parent has received and executed a combination of equity financing commitment letter (the “Equity Financing”"Financing Letter") and debt financing dated as of November 10, 2003 from Wachovia Capital Markets, LLC (the “Debt Financing”, and together with the Equity Financingits affiliates, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”"Arranger"), pursuant to whichwhich the Arranger, among other things, commits to provide up to $125,000,000 to Parent or a subsidiary of Parent for use in financing, in part, the cash consideration necessary to consummate the Merger, to pay related fees and expenses, and for general corporate purposes of Parent and its subsidiaries, in each case, subject to the terms and conditions thereofspecified therein. A true, the parties thereto have committed to provide Parent with the Financing.
(ii) As of the date hereof, none complete and fully executed copy of the Financing Commitments Letter has been furnished to the Company Board. The Financing Letter is in full force and effect and has not been amended or modified in any respect, respect and none all commitment fees required to be paid thereunder have been paid in full or will be duly paid in full when due. Assuming the accuracy of the Financing Commitments has been withdrawn or terminated in any respect. Each representations and warranties of the Company contained in Article IV of this Agreement and compliance by the Company with the covenants set forth in Section 6.01 and compliance by the Significant Shareholders with the Voting and Subscription Agreement, the aggregate proceeds of the financings contemplated by the Financing CommitmentsLetter, in when taken together with the form so delivered, is a legal, valid and binding obligation available cash of Parent andand the Company and the Subsidiary, are sufficient to pay the aggregate cash consideration for the Shares pursuant to Article III, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand retire any indebtedness of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which Subsidiary that may become due as a result of the transactions contemplated by this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out and to provide additional financing for future working capital and general corporate needs of or associated with this AgreementParent, the MergerSurviving Corporation and their respective subsidiaries (such financing, or any of the transactions contemplated hereby when due"Financing").
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement.
Appears in 1 contract
Financing Arrangements. Parent and Merger Sub have made available to the Company (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing letter (the “Equity FinancingCommitment Letter”) from JLL Partners Fund V, L.P., a Delaware limited partnership (“JLL Fund V”), confirming the commitment of JLL Fund V to subscribe for and purchase membership interests or other equity securities of Parent for an aggregate subscription price of $178.8 million in cash, subject to the terms and conditions thereof (the “Equity Investment”) and debt financing (ii) a letter (the “Debt Financing”Commitment Letter” and, and together collectively with the Equity FinancingCommitment Letter, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing CommitmentsCommitment Letters”) from Bear S▇▇▇▇▇▇ & Co., Inc. and equity Bear S▇▇▇▇▇▇ Corporate Lending, Inc. (collectively, “Bear S▇▇▇▇▇▇”) confirming the commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” andof Bear S▇▇▇▇▇▇, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with an asset-based revolving credit facility and a term loan facility in an aggregate amount of up to $400 million and to purchase or place $175 million of Senior Unsecured Notes (the “Debt Financing.
(ii) ”). None of the Commitment Letters has been amended or modified prior to the date of this Agreement, and none of the respective commitments contained in the Commitment Letters has been withdrawn or rescinded in any respect. As of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments Commitment Letters are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on Equity Investment and the terms contained in the Financing CommitmentsDebt Financing, other than as set forth in, in or contemplated by, by the Financing Commitments.
(iii) Commitment Letters. The aggregate proceeds from the Financing, together with cash on hand of Equity Investment and the Company and its Subsidiaries or Alternative Debt Financing (collectively, the “Financing”), as defined in Section 5.13 below) anticipated to contemplated by the Commitment Letters, will be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate aggregate Merger Consideration, (b) to pay (or provide the funds for the Surviving Corporation to pay) all amounts contemplated by Section 1.8 when due, (c) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, Agreement or any of the transactions contemplated hereby, and (cd) to pay all related fees and expenses arising solely out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby hereby, including the Merger, when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition . The proceeds of the Financing Commitments, will be used by Parent and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition for the purposes specified in clauses (a) through (d) of closing to be satisfied by it contained in the Financing Commitmentsimmediately preceding sentence. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before As of the date of this Agreement, neither Buyer nor Merger Sub has any reason to believe that any of the conditions to the Debt Financing will not be satisfied or that the Debt Financing will not be available to Buyer and Merger Sub on the Closing Date.
Appears in 1 contract
Financing Arrangements. (a) Buyer Parent, Buyer and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, as promptly as reasonably practicable, all things necessary, proper or advisable to arrange for debt financing for the funded amount, and on terms that are no less favorable to Buyer Parent in the aggregate than the terms, set forth on Schedule 8.7(a) (any such debt financing, an “Acceptable Debt Financing”). Buyer Parent, Buyer and Merger Sub shall consult in good faith, and reasonably cooperate, with the Company regarding its efforts to obtain debt financing described in the immediately preceding sentence.
(b) If Buyer Parent has obtained Acceptable Debt Financing by such date, on or prior to the later date (the “Debt Commitment Deadline”) of (i) The financing June 16, 2008 and (ii) the fourteenth day after the satisfaction or waiver of the transactions contemplated hereby will consist of a combination of equity financing condition set forth in Section 9.1(e) (the “Equity FinancingPLR Condition”) (provided that, if the PLR Condition is waived or satisfied after July 15, 2008 but prior to September 2, 2008, the “Debt Commitment Deadline” shall be September 15, 2008), Buyer Parent shall provide the Company with a true and debt complete copy of a commitment letter (the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”) from a reputable lender with experience in leveraged financing that is reasonably satisfactory to the Company (“Lender”), which letter is executed by such Lender, pursuant to which Lender has committed, subject to (i) execution and delivery by Buyer Parent and (ii) the terms and conditions set forth therein, to provide to Buyer Parent the amount of financing set forth in the Debt Commitment Letter (the “Debt Financing”), to complete the Transactions and together to pay related fees and expenses. If Buyer Parent has not obtained an Acceptable Debt Financing by the Debt Commitment Deadline, on or prior to the Debt Commitment Deadline, Buyer Parent may, but shall not be obligated to, provide the Company with a true and complete copy of a Debt Commitment Letter from a Lender, which letter is executed by such Lender, pursuant to which Lender has committed, subject to (i) execution and delivery by Buyer Parent and (ii) the Equity terms and conditions set forth therein, to provide to Buyer Parent the Debt Financing, to complete the “Transactions and to pay related fees and expenses.
(c) If:
(i) The Debt Commitment Letter delivered pursuant to Section 8.7(b) is an Acceptable Debt Financing”, subject to the Company’s right to terminate this Agreement under Section 12.1(c)(iv). , Buyer Parent has delivered may, at the time it delivers the Debt Commitment Letter to the Company truepursuant to 8.7(b), accurate request that a condition to the obligation of Buyer Parent, Buyer and complete copies Merger Sub to consummate the Merger be the negotiation, execution and delivery of executed financing letters definitive documentation with respect to the Debt Financing reasonably satisfactory to Buyer Parent. If Buyer Parent does not request the aforementioned condition, upon delivery of the Debt Commitment Letter, Buyer Parent shall execute the Debt Commitment Letter and Buyer Parent, Buyer and Merger Sub shall irrevocably waive the condition set forth in Section 9.3(g) (the “Debt Financing CommitmentsCondition”) and equity commitment letters with respect promptly deliver written notice of such waiver to the Equity Financing (Company. If Buyer Parent does request the “Equity Financing Commitments” andaforementioned condition and the Company accepts such condition by written notice to Buyer Parent or fails to terminate this Agreement pursuant to Section 12.1(c)(iv), together with the Merger Agreement shall be deemed to be amended to include such condition in Section 9.3 and Buyer Parent shall execute and deliver to the Company the Debt Commitment Letter and Buyer Parent, Buyer and Merger Sub shall irrevocably waive the Financing Commitments, the “Financing Commitments”), pursuant to which, and subject Condition by written notice to the terms and conditions thereof, the parties thereto have committed to provide Parent with the FinancingCompany.
(ii) As The Debt Commitment Letter delivered pursuant to Section 8.7(b) is not an Acceptable Debt Financing, subject to the Company’s right to terminate this Agreement under Section 12.1(c)(iv), Buyer Parent shall, at the time it delivers the Debt Commitment Letter to the Company pursuant to Section 8.7(b), identify any terms and conditions (including conditions precedent) (any such term or condition, an “Unacceptable Debt Financing Term”) in the Debt Commitment Letter that (A) fail to meet the terms and conditions set forth in Schedule 8.7(a) and (B) Buyer Parent requests to be addressed by the addition of a closing condition to Article 9 of the date hereofMerger Agreement solely for the purpose of addressing such failure. If the Company accepts the addition of such closing condition by written notice to Buyer Parent or fails to terminate this Agreement pursuant to Section 12.1(c)(iv), none such addition shall be deemed to be an amendment to Article 9 of the Merger Agreement and Buyer Parent shall execute and deliver to the Company the Debt Commitment Letter and Buyer Parent, Buyer and Merger Sub shall irrevocably waive the Financing Commitments Condition by written notice to the Company. If any Unacceptable Debt Financing Term that Buyer requests be addressed by the addition of a closing condition to the Merger Agreement pursuant to this Section 8.7(c)(ii) solely addresses a condition precedent to the Lender’s obligations under the Debt Commitment Letter, any closing condition that is added to Article 9 with respect to such Unacceptable Debt Financing Term shall (x) be added to Section 9.3 as a condition to the obligations of Buyer, Buyer Parent and Merger Sub and (y) shall only be a closing condition under Section 9.3 for so long as the Lender has been amended or modified in any respect, not waived the underlying condition precedent under the Debt Commitment Letter.
(d) After execution and none delivery of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing CommitmentsDebt Commitment Letter, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Buyer Parent, the other parties thereto. The Financing Commitments are in full force Buyer and effect. There are no conditions precedent Merger Sub shall use reasonable best efforts to take, or other contingencies related cause to the funding of the full amount of be taken, all actions and do, or cause to be done, as promptly as reasonably practicable, all things necessary, proper or advisable to arrange the Financing on the terms contained and conditions described in the Financing CommitmentsCommitment Letters, other than including using reasonable best efforts to, as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (promptly as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitationreasonably practicable, (ai) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis all conditions applicable to Buyer Parent, Buyer and Merger Sub obtaining the Financing set forth therein, (ii) negotiate and enter into definitive agreements with respect thereto on the terms and conditions contemplated by the Debt Commitment Letter (including any term related flex provisions) or condition on other terms in the aggregate not less favorable to Buyer Parent, Buyer and Merger Sub, (iii) timely prepare the necessary offering circulars, private placement memoranda, or other offering documents or marketing materials with respect to the Financing, (iv) commence the syndication activities contemplated by the Debt Commitment Letter and (v) consummate the Financing at or prior to Closing. Buyer shall give the Company prompt notice (A) of closing any material breach by any party of any Commitment Letter of which Buyer Parent, Buyer or Merger Sub becomes aware, (B) if and when Buyer Parent, Buyer or Merger Sub becomes aware that any portion of the Financing contemplated by the Commitment Letters would reasonably be expected to become unavailable to consummate the Transactions and (C) of any termination of any Commitment Letter. Buyer Parent, Buyer and Merger Sub shall keep the Company informed in all material respects on a reasonably current basis in reasonable detail of the status of their efforts to arrange the Debt Financing or Alternative Financing and provide to the Company copies of executed copies of the definitive documents related to the Financing or Alternative Financing (excluding any fee letters, engagement letters or other agreements that are confidential by their terms). If, after the execution and delivery of the Debt Commitment Letter, any portion of the Debt Financing becomes unavailable on the terms and conditions contemplated in the applicable Commitment Letter, Buyer Parent, Buyer and Merger Sub shall use commercially reasonable efforts to arrange to obtain alternative financing, including from alternative sources, on terms no less favorable to Buyer Parent, Buyer or Merger Sub in the aggregate than the Debt Financing contemplated by the applicable Debt Commitment Letter (including the flex provisions thereof) (“Alternative Financing”) as promptly as reasonably practicable following the occurrence of such event and the foregoing clauses (i) through (v) shall be applicable to the Alternative Financing. After the execution and delivery of the Debt Commitment Letter, Buyer Parent, Buyer and Merger Sub shall (1) comply in all material respects with the Debt Commitment Letter, (2) enforce in all material respects their rights under the Debt Commitment Letter and (3) not permit any material amendment or modification to be satisfied by it contained made to, or any waiver of any material provision or remedy under, the Debt Commitment Letter or the fee letter referred to in the Financing Commitments. Parent and/or Debt Commitment Letter without the prior written consent of the Company (which consent shall not unreasonably withheld, delayed or conditioned); provided that Buyer Parent, Buyer or Merger Sub have fully paid any and all commitment fees may replace, amend or other fees required by modify the Financing Commitments Debt Commitment Letter (x) to be paid on add lenders, lead arrangers, bookrunners, syndication agents or before similar entities which had not executed the Debt Commitment Letter as of the date of delivery thereof under Section 8.7(b), or (y) otherwise, in each case, so long as the terms would not, taken as a whole, materially delay or adversely impact in any material respect the ability of Buyer Parent, Buyer or Merger Sub to consummate the Transactions. In addition, notwithstanding anything in this Agreement.Section 8.7 to the contrary, the Debt Commitment Letter may be superseded at
Appears in 1 contract
Sources: Agreement and Plan of Merger (Booz Allen Hamilton Holding Corp)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent Kona has delivered to the Company true, accurate a true and complete copies of executed financing letters with respect copy of:
(i) the commitment letter, dated February 27, 2004, addressed to the Debt Financing Company (the “Debt Financing Commitments”"SENIOR DEBT COMMITMENT Letter") and equity commitment letters with respect to the Equity Financing from LaSalle Bank National Association (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”"LBNA"), pursuant to whichwhich LBNA has indicated that it is committed to provide $22,636,666 in debt financing (the "SENIOR DEBT FINANCING"), and subject to the terms and conditions thereoftherein, for purposes of consummating the parties thereto have committed to provide Parent with the Financing.
(ii) transactions contemplated hereby. As of the date hereof, none of the Financing Commitments Senior Debt Commitment Letter has not been amended amended, modified or modified in any respect, withdrawn and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are All commitment fees required to be paid thereunder have been paid in full or will be duly paid in full when due, and no conditions precedent event has occurred that (with or other contingencies related without notice, lapse of time, or both) would constitute a default thereunder on the part of the Company or LBNA, as the case may be. As of the date hereof, LBNA has not advised Kona of any facts or circumstances, and Kona knows of no facts or circumstances, that cause Kona to believe the financing contemplated by the Senior Debt Commitment Letter will not be consummated substantially in accordance with the terms thereof.
(ii) the commitment letter, dated February 18, 2004, addressed to Kona (the "SUBORDINATED DEBT COMMITMENT Letter") from Key Principal Partners, LLC ("KPP"), pursuant to which KPP has indicated that it is committed to provide $15,000,000 in debt financing (the "SUBORDINATED DEBT FINANCING"), subject to the funding terms and conditions therein, for purposes of consummating the transactions contemplated hereby. As of the date hereof, the Subordinated Debt Commitment Letter has not been amended, modified or withdrawn and is in full amount force and effect. All commitment fees required to be paid thereunder have been paid in full or will be duly paid in full when due, and no event has occurred that (with or without notice, lapse of time, or both) would constitute a default thereunder on the part of Kona or KPP, as the case may be. As of the Financing on date hereof, KPP has not advised Kona of any facts or circumstances, and Kona knows of no facts or circumstances, that cause Kona to believe the financing contemplated by the Subordinated Debt Commitment Letter will not be consummated substantially in accordance with the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitmentsthereof.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company financings contemplated by the Senior Debt Commitment Letter and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective TimeSubordinated Debt Commitment Letter, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated herebywhen taken together, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Total Cash Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement.
Appears in 1 contract
Financing Arrangements. (i) The Prior to the date hereof, LLC has delivered ---------------------- to AMD true and correct copies of the commitment letter and certain related documents set forth in Exhibit B from the financing sources identified therein, which provide for the financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”"Financing Commitments"). Parent has delivered The Financing Commitments are binding commitments and --------------------- have not been amended or modified or withdrawn or rescinded in any respect; and AMD is not aware of any fact, event or circumstance which would have a detrimental effect on the ability to consummate the Company true, accurate and complete copies of executed financing letters with respect to contemplated by the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to . The funds committed under the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitmentsfunds to be paid by LLC to purchase the Purchased Common Shares and the Purchased Preferred Shares, are sufficient to enable the “Financing Commitments”)Company and LLC to pay the Redemption Price and the Stock Purchase Price, pursuant as applicable, to which, pay all related fees and subject to expenses of LLC in connection with the terms transactions contemplated hereunder and conditions thereof, the parties thereto have committed to provide Parent with for the Financing.
(ii) As anticipated working capital needs of the date hereof, none Company following the consummation of the Financing Commitments has been amended or modified in any respect, and none of transactions contemplated hereunder (the Financing Commitments has been withdrawn or terminated in any respect. Each of financing necessary to provide such funds being hereinafter referred to as the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto"Financing"). The Financing Commitments are in full force and effect--------- effect as of the date hereof. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, in or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other All fees required to be paid by LLC on or prior to the date hereof in respect of the Financing Commitments have been paid. A true and correct schedule of sources and uses of the funds to be paid on or before received in the date of this Agreement.Financing are set forth in Exhibit B.
Appears in 1 contract
Sources: Recapitalization Agreement (Advanced Micro Devices Inc)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing Parent has received and executed commitment letters (the “Equity FinancingFinancing Letters”) dated as of January 30, 2004 from ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ Dominion Investments, Inc. and debt financing Perseus, L.L.C. (the “Debt Financing”, and together with the Equity Financing, the “FinancingLenders”). Parent A true, complete and fully-executed copy of each Financing Letter has delivered been furnished to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As of the date hereof, none Company. Each of the Financing Commitments Letters is in full force and effect and has not been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing commitment fees required to be provided by Parent for the consummation of the transactions contemplated herebypaid thereunder have been paid in full or will be duly paid in full when due, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No no event has occurred which, which (with or without notice, lapse of time or both, ) would constitute a default or breach thereunder on the part of Parent or Parent, Merger Sub under any term or condition or, to the knowledge of Parent, the Financing CommitmentsLenders, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained as the case may be. Except as set forth in the Financing Commitments. Parent and/or Letters, the Lenders have not advised Parent, Merger Sub have fully paid or any and all commitment fees or other fees required of their respective Affiliates of any facts which cause them to believe the financings contemplated by the Financing Commitments Letters will not be consummated substantially in accordance with the terms thereof. Assuming the satisfaction of the conditions contained in Sections 7.3(a) and (b), the aggregate proceeds of the financings contemplated by the Financing Letters, when taken together with the cash to be made available to Parent at the Closing, and the available cash of Merger Sub, the Company and its Subsidiaries, are sufficient to pay the aggregate Per Share Amount for the Shares pursuant to Article II, to pay all amounts required to be paid on or before to holders of Company Stock Options and Company Warrants hereunder, to refinance the date Indebtedness of the Company and its Subsidiaries that may become due as a result of the transactions contemplated by this AgreementAgreement (assuming the accuracy of the condition contained in Section 7.3(g) hereof), to pay all related fees and expenses and to provide working capital and funding for general corporate needs of Parent, the Surviving Corporation and their respective Subsidiaries (such financing, the “Financing”).
Appears in 1 contract
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing Parent has received executed commitment letters (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing CommitmentsLetters”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As dated as of the date hereof, none from Prudential Capital Partners, L.P., Prudential Insurance Company of America, Parking Management Fund, LP and S▇▇▇▇ ▇▇▇▇▇▇▇ Partners, LP (the “Lenders”), which are attached hereto as Exhibits F, G, H and I, respectively. Each of the Financing Commitments has Letters attached hereto is true, complete and fully-executed. The Financing Letters are in full force and effect, are not subject to any conditions other than those contained therein, and have not been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing commitment fees required to be provided by Parent for the consummation of the transactions contemplated herebypaid thereunder have been paid in full or will be duly paid in full when due, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No no event has occurred which, which (with or without notice, lapse of time or both, ) would constitute a default or breach thereunder on the part of Parent, Merger Sub or the Lenders, as the case may be. There are no facts and circumstances known to Parent, Merger Sub or any of their respective Affiliates that any of them believes or has reason to believe is reasonably likely to (i) prevent the conditions described in the Financing Letters from being satisfied, (ii) prevent Parent or Merger Sub under any term or condition from receiving financing pursuant to the terms of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis Letters or (iii) make any term of the conditions or condition of closing to be satisfied by it contained assumptions set forth in the Financing CommitmentsLetters unreasonable. Parent and/or The Lenders have not advised Parent, Merger Sub have fully paid or any and all commitment fees or other fees required of their respective Affiliates of any facts which cause them to believe the financings contemplated by the Financing Commitments Letters will not be consummated substantially in accordance with the terms thereof. The aggregate proceeds of the financings contemplated by the Financing Letters, when taken together with the available cash of the Company and its Subsidiaries, are sufficient to pay the aggregate Per Share Amount for the Shares pursuant to Article II, to pay all amounts required to be paid on or before to holders of Company Stock Options and Company Restricted Stock hereunder, to refinance any indebtedness of the date Company and its Subsidiaries that may become due as a result of the transactions contemplated by this Agreement, to pay all related fees and expenses and to provide additional financing for future working capital and general corporate needs of Parent, the Surviving Corporation and their respective Subsidiaries (such financing, the “Financing”).
Appears in 1 contract
Financing Arrangements. (i) The financing A true and correct copy of each fully-executed commitment letter, on behalf of Parent and by and among certain affiliates of Parent and Bank of the transactions contemplated hereby will consist West, Community Bank of a combination Nevada and Pacific Western Bank, respectively, and dated as of equity financing January 16, 2009, January 13, 2009, and January 16, 2009, respectively (the “Equity Financing”"Commitment Letters"), has previously been provided to the Company. Pursuant to the Commitment Letters, the lenders party thereto have committed in the aggregate, subject to the respective terms and conditions set forth therein, to provide financing on the terms set forth therein in an aggregate amount equal to $23,000,000, which, when aggregated with the amount of the financing contemplated by the Remaining Commitment Letter, would equal $28,000,000 (collectively, the "Financing Agreement Repayment Amount"), to replace the financing agreement, dated as of February 14, 2008 (as amended, the "Financing Agreement") among Westaff (USA), Inc. ("WUSA"), the Company, as parent guarantor, certain lenders party thereto and debt financing U.S. Bank National Association, as agent for the lenders thereto and letter of credit issuer ("U.S. Bank") (the “Debt "Financing”"). The Commitment Letters, in the respective forms so delivered are, as of the date hereof, in full force and together with effect and are a valid and binding obligation of the Equity Financingparties thereto other than the lenders party thereto (such non-lender parties, the “FinancingNon-Lender Parties”). Parent has delivered ) and, to the Company true, accurate and complete copies knowledge of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing CommitmentsParent, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) lenders party thereto. As of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would would, individually or in the aggregate constitute a default or breach on the part of Parent or Merger Sub the Non-Lender Parties under any term or condition of any Commitment Letter other than to the Financing Commitmentsextent that any term or condition requires any action by, or otherwise relates to, the Company. Parent and neither Parent nor Merger Sub reasonably believes have fully paid any and all commitment fees or other fees required by each Commitment Letter to be paid on or before the date of this Agreement. As of the date hereof, Parent and Merger Sub have no reason to believe that it they will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it them and/or the Non-Lender Parties contained in any Commitment Letter or that the Financing Commitmentswill not be available to them on the Closing Date. Parent and/or Merger Sub No Commitment Letter has been amended or modified except as permitted by this Agreement and, as of the date hereof, the commitments contained in each Commitment Letter have fully paid not been withdrawn or rescinded in any and all commitment fees respect. There are no conditions precedent or other fees required by similar contingencies to obtaining the funding of the full amount of the Financing Commitments to be paid made available on or before the date of this AgreementClosing Date as described in the Commitment Letters, other than as set forth in the respective Commitment Letters.
Appears in 1 contract
Sources: Merger Agreement (Sorensen Trust)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate a true and complete copies fully executed copy of executed financing letters with respect the commitment letter, dated as of the date hereof, among Parent and the other parties named therein, including all exhibits, schedules, annexes and amendments to such letter in effect as of the Debt Financing date of this Agreement (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing CommitmentsCommitment Letter”), pursuant to which, which and subject to the terms and conditions thereof, thereof each of the parties thereto Financing Parties have severally committed to provide lend the amounts set forth in the Commitment Letter to Parent with (the “Financing.
(ii”) for the purposes set forth in the Commitment Letter. The Commitment Letter has not been amended, restated or otherwise modified or waived prior to the execution and delivery of this Agreement, and the respective commitments contained in the Commitment Letter have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect prior to the execution and delivery of this Agreement. As of the date hereofexecution and delivery of this Agreement, none of the Financing Commitments has been amended or modified Commitment Letter is in any respect, full force and none of effect and constitutes the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of each of Parent and, to the Knowledge of Parent’s Knowledge, the Financing Parties, in each case as may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other parties thereto. The Financing Commitments are similar Applicable Laws affecting or relating to creditors’ rights generally (whether now or hereafter in full force effect) and effectgeneral principles of equity. There are no conditions precedent or other contingencies related to the obligations of the Financing Parties to fund the full amount of the Financing pursuant to the Commitment Letter, other than as expressly set forth in the Commitment Letter. As of the date of this Agreement (x) no event has occurred which would constitute a material breach or default (or an event which with notice or lapse of time or both would constitute a default) on the part of Parent under the Commitment Letter or, to Parent’s Knowledge, any other party to the Commitment Letter and (y) (i) assuming the satisfaction of the conditions set forth in Section 9.01 and Section 9.02 and (ii) the satisfaction by the Company of its obligations under Section 8.01(c), Parent does not have any reason to believe that any of the conditions to the Financing will not be satisfied or that the full amount of the Financing will not be available to Parent at the Closing. Except for fee letters with respect to fees and related arrangements with respect to the Financing, of which Parent has delivered a true and complete copy to the Company prior to the date hereof (other than with respect to redacted fee information, but which fee information does not relate to the amounts, conditionality of, or contain any conditions precedent to, the funding of the Financing), and as of the date hereof there are no side letters or other agreements, contracts or arrangements (except for any agreements entered into after the date of this Agreement that are expressly contemplated by the Commitment Letter) related to the Financing, or the funding of the full amount of the Financing on the terms contained in the Financing CommitmentsFinancing, other than as expressly set forth in, or contemplated by, in the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand of Commitment Letter and delivered to the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated prior to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitmentsdate hereof. Parent and/or Merger Sub have has fully paid any and or will pay when due all commitment fees or other fees required by the Financing Commitments to be paid on or before in connection with the date of this AgreementCommitment Letter and the Financing.
Appears in 1 contract
Financing Arrangements. (a) Parent shall use its commercially reasonable efforts to obtain and effectuate the Financing contemplated by the Commitment Letter on the terms set forth therein. Parent agrees to notify the Company as soon as reasonably practicable if, at any time prior to the Closing Date, (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”Commitment Letter shall expire or be terminated for any reason, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As of any financing source that is a party to the date hereof, none Commitment Letter notifies Parent or Viasystems that such source no longer intends to provide financing to Viasystems or (iii) for any reason Parent no longer believes in good faith that it will be able to obtain any of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing substantially on the terms contained described in the Financing CommitmentsCommitment Letter. Parent shall not, other than as set forth innor shall it permit any of its subsidiaries or Affiliates to, or contemplated by, without the Financing Commitments.
(iii) The aggregate proceeds from the Financing, together with cash on hand prior written consent of the Company and its Subsidiaries Company, take any action or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreemententer into any transaction, including, without limitation, (a) any merger, acquisition, joint venture, disposition, lease, contract or debt or equity financing that would reasonably be expected to pay (impair, delay or provide prevent the funds for Financing contemplated by the Surviving Corporation Commitment Letter. Parent shall not, and shall cause Viasystems not to, amend or alter, or agree to pay) amend or alter, the Aggregate Merger ConsiderationCommitment Letter in any manner that would impair, delay or prevent the Closing without the prior written consent of the Company.
(b) If the Commitment Letter shall expire or terminate for any reason, Parent shall use its commercially reasonable efforts to refinance any indebtedness or other obligation of cause Viasystems to obtain, and will provide the Company or Parent with a copy of, a new financing commitment that provides for at least the same amount of financing as the Commitment Letter as originally issued, funding conditions no less favorable than those included in the Commitment Letter as originally issued and other terms and conditions the aggregate effect of which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) is not materially adverse to pay all related fees and expenses arising out of or associated Viasystems in comparison with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it those contained in the Financing CommitmentsCommitment Letter as originally issued, which extension or new commitment shall include a termination date not earlier than the Walk-Away Date. Parent and/or Merger Sub have fully paid shall cause Viasystems to accept any such commitment letter if the funding conditions and all commitment fees or other fees required by terms and conditions contained therein are not materially adverse to Viasystems in comparison with those contained in the Financing Commitments to be paid on or before the date of this AgreementCommitment Letter as originally issued.
Appears in 1 contract
Sources: Merger Agreement (Merix Corp)
Financing Arrangements. Holding and Parent each hereby agree to use commercially reasonable efforts to obtain the Financing on the terms set forth in the Credit Agreement Amendment, the Purchase Agreement and the Escrow Agreement and the Additional Financing on the terms set forth in the Amended Subscription Agreement and the ▇▇▇▇ Strategic Commitment Letter. Holding and Parent will keep the Company informed on a reasonably current basis in reasonable detail on the status of their efforts to obtain the Financing and the Additional Financing and shall not permit any amendment or modification that is adverse to the Company to be made to, or any waiver that is adverse to the Company of any provision or remedy under, the Credit Agreement Amendment, the Purchase Agreement, the Escrow Agreement, the Amended Subscription Agreement or the ▇▇▇▇ Strategic Commitment Letter without the prior written consent of the Company. The Company hereby consents to each of the following: (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, and together with the Equity Financing, the “Financing”). Parent has delivered amendments to the Company trueOriginal Subscription Agreement reflected in the Amended Subscription Agreement, accurate and complete copies of executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As as of the date hereof, none (ii) the replacement of the Financing Commitments has been amended or modified in any respect, Old ▇▇▇▇ Strategic Commitment Letter (which shall be null and none void and of the Financing Commitments has been withdrawn or terminated in any respect. Each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full no further force and effect) by the ▇▇▇▇ Strategic Commitment Letter as of the date hereof, (iii) the Escrow Agreement, and (iv) the Commitment Termination Agreement, dated as of May 22, 2003, between Parent and Credit Suisse First Boston, terminating the commitment letter, dated February 17, 2003, between Credit Suisse First Boston, acting through its Cayman Island Branch, and Parent. There Holding and Parent will be under no obligation under any circumstances to obtain more than $100.0 million (plus the amount, if any, required by the ▇▇▇▇ Strategic Commitment Letter) of equity financing for the Merger and related matters. In the event that Holding or Parent is unable to obtain the Financing or the Additional Financing, Holding and Parent shall use commercially reasonable efforts to obtain alternative financing with overall pricing, cost, timing and maturity terms that are no conditions precedent or less favorable, and other contingencies related terms that are no less favorable in any material respect, to the funding of the full amount of the Financing on the terms Holding and Parent than those contained in the Financing Commitments, other than as set forth in, or contemplated byCredit Agreement Amendment, the Financing CommitmentsPurchase Agreement and the Escrow Agreement or the Amended Subscription Agreement and ▇▇▇▇ Strategic Commitment Letter, as the case may be.
(iii) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cb Richard Ellis Corporate Facilities Management Inc)
Financing Arrangements. (i) The financing of the transactions contemplated hereby will consist of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”True, and together with the Equity Financing, the “Financing”). Parent has delivered to the Company true, accurate correct and complete copies of executed financing letters with respect the Purchaser Commitment Letters have been provided to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions thereof, the parties thereto have committed to provide Parent with the Financing.
(ii) As of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respectVendor. Each of the Financing Commitments, in the form so delivered, Purchaser Commitment Letter is a legal, valid and binding obligation of Parent and, to the Knowledge of Parent, the other parties thereto. The Financing Commitments are in full force and effect. There The obligations of the Lenders to fund the commitments under the Purchaser Commitment Letters are no not subject to any conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing CommitmentsPurchaser Debt Financing, other than as expressly set forth inin the Purchaser Commitment Letters. Excerpts of those portions, or contemplated byif any, of each executed fee letter associated with the Purchaser Debt Financing Commitments.
(iii) The aggregate proceeds from that contain any conditions to the funding of the Purchaser Debt Financing, together with cash on hand have been provided to the Vendor. The Purchaser represents and warrants that (other than the excerpted portion of the Company and its Subsidiaries fee letters referred to in the immediately preceding sentence) there are no side letters or Alternative agreements to which Purchaser is a party related to the funding or investing, as applicable, of the Purchaser Debt Financing (that could reasonably be expected to adversely affect the availability of the Purchaser Debt Financing other than as defined expressly set forth in Section 5.13 below) anticipated the Purchaser Commitment Letters delivered to the Vendor on or prior to the date of the Agreement. The Purchaser has fully paid or caused to be available at the Effective Time, constitute all of the financing required to be provided by Parent for the consummation of the transactions contemplated hereby, and are sufficient for the satisfaction of all of Parent’s and Merger Sub’s financial obligations under this Agreement, including, without limitation, (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger Consideration, (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related fees and expenses arising out of or associated with this Agreement, the Merger, or any of the transactions contemplated hereby when due.
(iv) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub have fully paid any and all commitment fees or other fees required by the Financing Commitments Purchaser Commitment Letters to be paid on or before as of the date of this the Agreement. The aggregate proceeds contemplated by the Purchaser Commitment Letters will be sufficient: (i) to pay the aggregate Purchase Price for all of the Purchased Shares and the amounts required to be paid under Article 3 of the Agreement; and (ii) to fund all other amounts payable by the Purchaser pursuant to the Agreement and all other fees and expenses incurred by the Purchaser in connection with the negotiation, execution and delivery of the Agreement and the consummation of the transactions contemplated by the Agreement. The Purchaser, after due inquiry, does not have any reason to believe: (i) that any of the conditions to the Purchaser Debt Financing will not be satisfied or that the Purchaser Debt Financing will not be available on the Closing Time; or (ii) that the Purchaser will not have funds otherwise available prior to the Closing Time sufficient to satisfy the Purchaser’s obligations under the Agreement.
Appears in 1 contract
Financing Arrangements. (ia) The financing of the transactions contemplated hereby will consist consist, in part, of a combination of equity financing (the “Equity Financing”) and debt financing (the “Debt Financing”, ) and together with the Equity Financing, delivery of the “Financing”)Parent Common Stock. Parent has and Buyer have delivered to the Company true, accurate and complete copies of fully executed financing letters with respect to the Debt Financing (the “Debt Financing Commitments”) and equity commitment letters with respect to the Equity Financing (the “Equity Financing Commitments” and, together with the Debt Financing Commitments, the “Financing Commitments”), pursuant to whichwhich the lenders named therein have committed, and subject to the terms and conditions thereof, to lend Parent or Buyer the parties thereto have committed to provide Parent with the Financingamounts stated therein.
(iib) As of the date hereof, none of the Financing Commitments has been amended or modified in any respect, and none of the Financing Commitments has been withdrawn or terminated in any respect. Each As of the date hereof, each of the Financing Commitments, in the form so delivered, is a legal, valid and binding obligation of Parent or Buyer and, to the Knowledge of ParentParent and Buyer, the other parties thereto. The As of the date hereof, the Financing Commitments are in full force and effect. There are no conditions precedent or other contingencies related to the funding of the full amount of the Financing on the terms contained in the Financing Commitments, other than as set forth in, or contemplated by, the Financing Commitments.
(iiic) The aggregate proceeds from the Financing, together with cash on hand of the Company and its Subsidiaries or Alternative Financing (as defined in Section 5.13 below) anticipated to be available at the Effective TimeClosing, constitute all of the financing required to be provided by will provide Parent and Buyer with funds sufficient for the consummation by Parent and Buyer of the transactions contemplated hereby, hereby and are sufficient for the satisfaction of all of Parent’s and Merger SubBuyer’s financial payment obligations under this Agreement, including, without limitation, their obligations (a) to pay (or provide the funds for the Surviving Corporation to pay) the Aggregate Merger ConsiderationCash Purchase Price, and (b) to refinance any indebtedness or other obligation of the Company or Parent which may become due as a result of this Agreement, the Merger, or any of the transactions contemplated hereby, and (c) to pay all related of Buyer’s and Parent’s fees and expenses arising out of or associated with this Agreement, the Merger, Agreement or any of the transactions contemplated hereby when due.
(ivd) No event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Parent or Merger Sub Buyer under any term or condition of the Financing Commitments, and neither Parent nor Merger Sub Buyer reasonably believes that it will be unable to satisfy on a timely basis any term or condition of closing to be satisfied by it contained in the Financing Commitments. Parent and/or Merger Sub Buyer have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement.
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