Financing Efforts. (a) During the Interim Period, Oryx shall use its commercially reasonable efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms described in the Debt Commitment Letter, including using commercially reasonable efforts to: (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Plains Gp Holdings Lp), Agreement and Plan of Merger (Plains All American Pipeline Lp)
Financing Efforts. (a) During the Interim Period, Oryx The Industrea Parties shall use its commercially reasonable best efforts to take (take, or cause to be taken), all actions and do (do, or cause to be done), all things necessary, proper necessary or advisable to maintain in effect, arrange the Debt Financing as promptly as practicable following the date hereof and to consummate the Debt Financing on or before the Closing Date on Date. Such actions shall include, but not be limited to, the terms described in the Debt Commitment Letter, including using commercially reasonable efforts tofollowing: (i) satisfy, or cause maintaining in effect the Debt Commitment Letters; (ii) causing the Argand Equity Investment to be consummated upon satisfaction of, or obtain a waiver of, of the Financing Conditions contained in the Argand Subscription Agreement; (iii) satisfying on a timely basis all conditions applicable to Oryx under Financing Conditions; (iv) negotiating, executing and delivering definitive agreements and other documentation (“Debt Financing Documents”) that reflect the terms contained in the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter Letters (including any “market flex” provisions related thereto); (v) enforcing its rights under the Debt Commitment Letters in the event of a Financing Failure Event and (vi) in the event that the conditions set forth in Sections 9.1 and 9.2 and the Financing Conditions have been satisfied or, upon funding would be satisfied, cause the financing providers to fund the full amount of the Fee Letter) on Financing. Industrea shall give the Company prompt notice of any breach, repudiation, or prior threatened or anticipated breach or repudiation, by any party to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any a Debt Commitment Letter without of which Industrea or its Affiliates becomes aware. Without limiting the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s Industrea Parties’ other obligations under this Agreement Section 7.4, if a Financing Failure Event occurs the Industrea Parties shall (x) promptly notify the Company of such Financing Failure Event and the reasons therefor, (y) in consultation with the Company, obtain alternative financing from alternative financing sources, in an amount sufficient to make the Closing Date Payments and consummate the transactions contemplated hereby by this Agreement, as promptly as practicable following the occurrence of such event, and (including z) obtain, and when obtained, provide the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy Company with a copy of, a new financing commitment, subject only to the Financing Conditions, that provides for such alternative financing. Neither Industrea nor any of its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace the a Debt Commitment Letter or Fee Letter any Debt Financing Document except for (a) substitutions and replacements pursuant to the immediately preceding sentence; or (b) if such amendment, modification, waiver supplement, restatement, assignment, substitution or replacement (i) does not contain additional conditions, modified conditions or other contingencies, in each case to the funding of the debt financing relative to those contained in Debt Commitment Letters for the debt financing as in effect on the date of this Agreement, (ii) or is otherwise not reasonably likely to (x) reduces impair or materially delay the funding of the Debt Financing or (y) impair or materially delay the Closing and (iii) does not reduce the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof of this Agreement; provided, that, notwithstanding the foregoing, it is hereby understood and agreed that the Industrea Parties may amend the economic or other arrangements among the existing and additional either Debt Commitment Letter to (A) add lenders, lead arrangers, bookrunners, syndication agents or similar entitiesentities who had not executed such Debt Commitment Letter as of the date hereof and provide such lenders, lead arrangers, bookrunners, syndication agents or similar entities with consent rights with respect to replace existing conditions to the commitment parties with new commitment parties if consummation of the addition of financings contemplated by such additional parties does not reduce Debt Commitment Letter to the extent that the commitments in the aggregate net amount of the lenders to be funded provide the financings contemplated by such Debt Commitment Letter are not reduced as a result of any such amendment and (B) implement any “market flex” provisions contained in a Debt Commitment Letter. Upon any such amendment, supplement, modification or replacement of a Debt Commitment Letter or Debt Financing Document in accordance with this Section 7.4(a), the term “Debt Commitment Letter” shall include such “Debt Commitment Letter” as so amended, supplemented, modified or replaced. Upon the request of the Company, Industrea will confirm (a) with its Financing Sources their intent and ability to perform, and the availability of the Debt Financing, under the Debt Commitment Letter at Letters, subject only to satisfaction or waiver of the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shallFinancing Conditions, upon execution and (b) that neither it nor its Financing Sources are aware of any amendment, modification, waiver event or replacement condition that could reasonably be expected to result in the failure of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to a Financing Condition. “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Industrea Acquisition Corp.), Agreement and Plan of Merger
Financing Efforts. (a) During the Interim PeriodEach of Parent and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially reasonable efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the Closing Date as soon as reasonably practicable on the terms described and conditions contained in the Debt Commitment LetterFinancing Commitments and to consummate the Rollover Investment pursuant to the Rollover Letters in accordance with the terms thereof, including using its commercially reasonable efforts to: to (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx comply with its obligations under the Debt Commitment Letter on or prior to Financing Commitments and the Closing Date; Rollover Letters, (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing Commitments on the terms and subject conditions that would not (A) reduce the aggregate amount of the Financing unless the Rollover Investment is increased by a corresponding amount or (B) materially delay the receipt of the Financing or make it materially less likely that the Financing would be received, (iii) satisfy on a reasonably timely basis all conditions applicable to Parent and Merger Sub contained in the Financing Commitments (including definitive agreements related thereto) and the Rollover Letters, including the payment of any commitment, engagement or placement fees required as a condition to the conditions contemplated by Financing, and (iv) consummate the Debt Commitment Letter (including any “market flex” provisions of Financing and the Fee Letter) on Rollover Investment at or prior to the Closing Date; Date (it being understood that it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, each of Parent and Merger Sub shall, and shall cause each of its Affiliates to, take all actions reasonably necessary to (i) maintain in effect each Financing Commitment and each Rollover Letter (it being understood that the Financing Commitments and the Rollover Letters may be replaced or amended as provided below) and (iiiii) consummate enforce all of its rights under each Financing Commitment (or any definitive agreements relating thereto) and each Rollover Letter (it being agreed that nothing herein shall require the Debt Financing at or prior Parent to or substantially concurrently with Closingcommence litigation to enforce such rights). Oryx Upon request, Parent shall not terminate any Debt Commitment Letter without keep the prior written consent Company reasonably informed of the Plains Parties if status of its efforts to arrange the available cash on hand Financing (including providing the Company with copies of Oryxmaterial draft and definitive agreements and other material documents related to the Financing) and the Rollover Investment. Parent and Merger Sub shall give the Company notice as promptly as reasonably practicable after obtaining Knowledge thereof (x) of any material breach or default by any party to any of the Financing Commitments, together any Rollover Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (y) of the receipt of any written notice or other written communication from any Person with respect to (1) any Substitute actual or potential breach, default, termination or repudiation by any party to any of the Financing Commitments Commitments, any Rollover Letter or equity commitmentsdefinitive agreements related to the Financing of any provisions of any Financing Commitment, would not any Rollover Letter or definitive agreements related to the Financing or (2) material dispute or disagreement between or among the parties to any of the Financing Commitments, any Rollover Letter or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be sufficient to satisfy Oryx’s obligations under this Agreement and funded at the Closing or to consummate the transactions contemplated hereby Rollover Investment or the amount of shares of Common Stock to be contributed prior to Closing, and (including z) any other circumstance that would adversely affect the Oryx Refinancing ability of Merger Sub to obtain all or any portion of the Financing or the Rollover Investment on a timely basis. As soon as reasonably practicable and pay all other amounts pursuant in any event within two (2) Business Days, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to this Agreement and any circumstance referred to in clause (x), (y) or (z) of the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby)immediately preceding sentence. Oryx Parent shall not, without the prior written consent of Plains Parentthe Company, permit amend, modify, supplement or waive any amendment of the conditions or modification contingencies to be made tofunding contained in any Financing Commitment (including definitive agreements related thereto) or to the making of the Rollover Investment contained in any Rollover Letter, consent to or any waiver of any other provision or remedy of, or replace remedies under, any Financing Commitment (including definitive agreements related thereto) or any Rollover Letter, the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement effect of which (xI) reduces the aggregate amount of aggregate cash proceeds available from the Debt Financing unless there is a corresponding increase in the Rollover Investment, (II) would delay, prevent or adversely impact, or, individually or in the aggregate, would reasonably be expected to have the effect of delaying, preventing or adversely impacting, in each case, in any material respect, the funding of the Financing (including by changing or satisfaction of the amount conditions to the Financing) on the Closing Date, or (III) would prevent or adversely impact or delay, or, individually or in the aggregate, would reasonably be expected to have the effect of fees preventing, adversely impacting, or delaying, in each case, in any material respect the ability of Parent to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to timely consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to by this Agreement and on the other Transaction DocumentsClosing Date (any modification of the type described in clauses (I) through (III), “Restricted Modifications”); provided, however, that, notwithstanding the foregoing, Parent may modify, supplement or amend the Financing Commitments to (yi) imposes any new or additional condition to the Debt Financingamend, replace, supplement, or otherwise amendsmodify or waive any provision of any Debt Commitment Letter and/or substitute other debt financing for all or a portion of the Financing from the same and/or alternative Financing Sources, modifies so long as such amendments, replacements, supplements or expands any condition to modifications or waivers, or such substitute financing, shall not expand in a material way the Debt Financing, in each case in any manner that would conditions precedent contained therein or materially delay, impede or prevent delay the funding of the Debt Financing at Closing, (ii) reflect the exercise of any “market flex” provisions in connection therewith, and (iii) add lenders, lead arrangers, bookrunners, syndication agents, other agents or consummation similar entities that have not executed the Financing Commitments as of the Contemplated Transactions date hereof or (z) is to increase the amount of a type that is not described in funds available thereunder, and Parent or Merger Sub shall promptly deliver to the foregoing clause (x) Company copies of any such amendment, modification, supplement, restatement or (y) and would otherwise be reasonably likely to make replacement. In the funding of the Debt Financing less likely to occur. If event all conditions applicable to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall a Financing Commitment and/or a Rollover Letter have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributablesatisfied, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx Parent shall use its commercially reasonable efforts to cause the Lenders and the Rollover Investors to fund the Financing Sources providing and make the Rollover Investment, as applicable, required to consummate the transactions contemplated by this Agreement as soon as reasonably practicable. In the event that any portion of the Financing becomes unavailable and such portion is not otherwise available under the Debt Financing or Rollover Investment, as applicable, Parent shall notify the Company and use its commercially reasonable efforts to fund on arrange alternative financing from the same or before other sources of financing that do not contain any Restricted Modifications (such terms and conditions, the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x“Alternate Terms and Conditions”), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending in an amount sufficient to enable Parent to consummate the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect transactions contemplated by this Agreement on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties Alternate Terms and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement)Conditions.
Appears in 1 contract
Financing Efforts. (a) During the Interim PeriodEach of Parent and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially reasonable best efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the Closing Date as soon as reasonably practicable on the terms described and conditions contained in the Debt Commitment LetterFinancing Commitments (reflecting flex provisions to the extent exercised) and to consummate the Rollover Investment pursuant to the Rollover Letters in accordance with the terms thereof, including using commercially its reasonable best efforts to: to (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx comply with its obligations under the Debt Commitment Letter on or prior to Financing Commitments and the Closing Date; Rollover Letters, (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing Commitments on the terms and subject conditions (reflecting flex provisions to the extent exercised) no less favorable to Parent and Merger Sub than those contained in the respective Financing Commitments or on terms and conditions contemplated otherwise acceptable to Parent that would not (A) reduce the aggregate amount of the Financing unless the Rollover Investment is increased by a corresponding amount or (B) impose new or additional conditions precedent to, or delay, the Debt Commitment Letter receipt of the Financing, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub contained in the Financing Commitments (including definitive agreements related thereto) and the Rollover Letters, including the payment of any “market flex” provisions of commitment, engagement or placement fees required as a condition to the Fee LetterFinancing, and (iv) on consummate the Financing and the Rollover Investment at or prior to the Closing Date; Date (it being understood that it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, each of Parent and Merger Sub shall, and shall cause each of its Affiliates to, take all actions reasonably necessary to (i) maintain in effect each Financing Commitment and each Rollover Letter (it being understood that the Financing Commitments and the Rollover Letters may be replaced or amended as provided below) and (iiiii) consummate enforce all of its rights under each Financing Commitment (or any definitive agreements relating thereto) and each Rollover Letter. Parent shall keep the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent Company reasonably informed of the Plains Parties if status of its efforts to arrange the available cash on hand Financing (including providing the Company with copies of Oryxmaterial draft and definitive agreements and other material documents related to the Financing) and the Rollover Investment. Parent and Merger Sub shall give the Company notice as promptly as reasonably practicable after obtaining Knowledge thereof (x) of any material breach or default by any party to any of the Financing Commitments, together any Rollover Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (y) of the receipt of any (A) written notice or (B) other communication, in each case from any Person with respect to (1) any Substitute actual or potential breach, default, termination or repudiation by any party to any of the Financing Commitments Commitments, any Rollover Letter or equity commitmentsdefinitive agreements related to the Financing of any provisions of any Financing Commitment, would not any Rollover Letter or definitive agreements related to the Financing or (2) material dispute or disagreement between or among the parties to any of the Financing Commitments, any Rollover Letter or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be sufficient to satisfy Oryx’s obligations under this Agreement and funded at the Closing or to consummate the transactions Rollover Investment or the amount of shares of Common Stock to be contributed prior to Closing, and (z) if at any time for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing or the Rollover Investment on the terms and conditions, in the manner or from the sources contemplated hereby by any of the Financing Commitments, any Rollover Letter or definitive agreements related the Financing. As soon as reasonably practicable and in any event within three Business Days, Parent and Merger Sub shall provide any information reasonably requested by the Company relating to any circumstance referred to in clause (including x), (y) or (z) of the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby)immediately preceding sentence. Oryx Parent shall not, without the prior written consent of Plains Parentthe Company, permit amend, modify, supplement or waive any amendment of the conditions or modification contingencies to be made tofunding contained in any Financing Commitment (including definitive agreements related thereto) or to the making of the Rollover Investment contained in any Rollover Letter, consent to or any waiver of any other provision or remedy of, or replace remedies under, any Financing Commitment (including definitive agreements related thereto) or any Rollover Letter, the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement effect of which (xI) reduces (or could have the aggregate effect of reducing) the amount of aggregate cash proceeds available from the Debt Financing (including by changing increasing the amount of fees to be paid or original issue discount thereofother than as a result of the exercise of any related “market flex” provisions set forth in a fee letter) below unless there is a corresponding increase in the amount necessary Rollover Investment, (II) imposes, or could reasonably be expected to effectuate impose, new or additional conditions or contingencies to the Oryx Refinancing and pay all other amounts pursuant to this Agreement and receipt of the other Transaction Documents Financing or otherwise necessary expands, amends or modifies any other material provision of any Financing Commitment, (III) would delay, prevent or adversely impact, or, individually or in the aggregate, would reasonably be expected to have the effect of delaying, preventing or adversely impacting, in each case, in any material respect, the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date, or (IV) would prevent or adversely impact or delay, or, individually or in the aggregate, would reasonably be expected to have the effect of preventing, adversely impacting, or delaying, in each case, in any material respect the ability of Parent to timely consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to by this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to on the Closing set forth in Section 7.1(a)Date; provided, Section 7.1(b)however, Section 7.2 and Section 7.3 shall have been previously satisfied that, notwithstanding the foregoing, Parent may modify, supplement or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause amend the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order Commitments to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents, other agents or similar entities, or to replace entities that have not executed the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “Financing Commitments as of the date hereof” hereof or similar phrasing to be deemed a reference increase the amount of funds available thereunder, and Parent or Merger Sub shall promptly deliver to the date Company copies of any such amendment, modification, waiver supplement, restatement or replacement. In the event all conditions applicable to a Financing Commitment and/or a Rollover Letter have been satisfied, Parent shall use its reasonable best efforts to cause the Lenders and the Rollover Investors to fund the Financing and make the Rollover Investment, as applicable, required to consummate the transactions contemplated by this Agreement as soon as reasonably practicable. In the event that any portion of the Financing becomes unavailable and such portion is not otherwise available under the Debt Financing or Rollover Investment, as applicable, Parent shall notify the Company and use its reasonable best efforts to arrange alternative financing from the same or other sources of financing on terms and conditions (including the economic terms, covenants, flex provisions and funding conditions) not less favorable to Parent and Merger Sub, taken as a whole, than those contained in the Financing Commitments as of the date hereof (taking into account the flex provisions) (the “Alternate Terms and Conditions”), in an amount sufficient to enable Parent to consummate the transactions contemplated by this Agreement on the Alternate Terms and Conditions.
Appears in 1 contract
Financing Efforts. (a) During Subject to the Interim Periodterms and conditions of this Agreement, Oryx shall Townsquare will use its commercially reasonable best efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before proceeds of the Closing Date on the terms described in the Debt Commitment Letter, including using commercially reasonable efforts to: (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to conditions described in the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the Fee Letter) on or prior to the Closing Date; Financing Letters, and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall will not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to or any waiver of any provision or remedy ofunder, or replace the Debt Commitment Letter or Fee Letter Financing Letters if such amendment, modificationmodification or waiver would reasonably be expected to (A) materially delay or prevent the Closing, waiver or replacement (xB) reduces make the aggregate amount funding of the Debt Financing (including by changing or satisfaction of the amount conditions to obtaining the Financing) materially less likely to occur, (C) materially adversely impact the ability of fees Townsquare to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and enforce its rights against the other Transaction Documents parties to the Financing Letters or otherwise necessary the definitive agreements with respect thereto or (D) materially adversely impact the ability of Townsquare to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to under this Agreement and or the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding likelihood of the Debt Financing or consummation of the Contemplated Transactions or same, except in each case, with the prior written consent of Cumulus; provided, however, that Townsquare may, without the prior written consent of Cumulus, (zi) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause amend the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order Letters to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, entities who had not executed the Financing Letters as of the date of this Agreement or to (ii) otherwise amend or replace the commitment parties with new commitment parties if the addition of Financing Letters so long as (x) such additional parties does amendments do not reduce the aggregate net amount impose terms or conditions that would reasonably be expected to be funded under the Debt Commitment Letter at materially delay or prevent the Closing as compared and (y) with respect to replacements, the amount replacement debt commitments otherwise satisfy the terms and conditions of an Alternative Financing set forth below. Townsquare will use its reasonable best efforts to be funded at the Closing under the Debt Commitment Letter as (I) maintain in effect the Financing Letters (including any definitive agreements entered into in connection with any such Financing Letters), (II) satisfy (or obtain a waiver of) on a timely basis all conditions in the date hereof. Oryx shallFinancing Letters applicable to (and within the control of) Townsquare to obtaining the Financing, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties (III) negotiate and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 enter into definitive agreements with respect to the Debt Commitment LetterFinancing on terms and conditions contained in the Financing Letters (including any “market flex” provisions applicable thereto) or consistent in all material respects with the Financing Letters (such definitive agreements, as so amendedtogether with the Financing Letters, modifiedthe “Financing Agreements”), waived or replaced and (with IV) cause each reference Lender and equity investors to “as fund its respective committed portion of the date hereof” Financing (including by suit or similar phrasing other appropriate proceeding to be deemed a reference cause the Lenders and the equity investors under the Financing Agreements to fund its respective committed portion of the date Financing if all conditions to funding the Financing have been satisfied or waived, provided that Townsquare shall control all aspects of such amendmentproceeding, modificationincluding litigation strategy and selection of counsel). Townsquare will keep Cumulus reasonably informed on a timely basis of the status of Townsquare’s efforts to arrange the Financing and to satisfy the conditions thereof, waiver including, upon Cumulus’ reasonable request, advising and updating Cumulus, in a reasonable level of detail, with respect to status and proposed closing date for the Financing. Upon becoming aware of, or replacement)receiving written notice with respect to, any portion of the amount of the Financing necessary to consummate the transactions hereunder becoming unavailable on the material terms and conditions contemplated by the applicable Financing Agreements, (i) Townsquare will promptly notify Cumulus and (ii) Townsquare will use its reasonable best efforts to arrange and obtain alternative financing from alternative sources in an amount sufficient, when taken together with any remaining Financing and any other sources available to Townsquare, to consummate the transactions hereunder with terms and conditions not materially less favorable, taken as a whole, to Townsquare and Cumulus than the terms and conditions set forth in the applicable Financing Agreements (“Alternative Financing”) as promptly as practicable following the occurrence of such event but no later than thirty (30) days before Closing.
Appears in 1 contract
Financing Efforts. (a) During the Interim PeriodEach of Buyer and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially reasonable best efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before contemplated by the Closing Date on the terms described in the Debt Commitment LetterLetters, including using commercially reasonable best efforts to: to (i) maintain in effect the Commitment Letters, (ii) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis taking into account the expected timing of the Marketing Period and the Outside Date, all conditions applicable to Oryx under Buyer and Merger Sub that are within its control to obtaining the Financing set forth therein (including the payment of any commitment, engagement or placement fees required as a condition to the Debt Financing), (iii) enter into definitive agreements with respect to the Debt Commitment Letter on the terms and conditions contained in the Commitment Letters or on terms no less favorable to Buyer (as determined in the good faith judgment of Buyer), and (iv) consummate the Financing at or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to , but in no event later than the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter Outside Date (including any “market flex” provisions of using its reasonable best efforts to cause the Fee Letter) on or prior Lenders and other Persons providing Financing to the Closing Date; and (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and herebyprovide such financing). Oryx Buyer shall not, without the prior written consent of Plains Parentthe Company, permit amend, modify or supplement (including in the definitive documents) (x) any amendment of the conditions or modification contingencies to be made to, consent to any waiver of any provision or remedy offunding contained in the Commitment Letters, or replace (y) any other provision of the Debt Commitment Letter or Fee Letter if Letters, in either case to the extent such amendment, modification, waiver modification or replacement supplement could reasonably be expected to have the effect of (xA) reduces adversely affecting the aggregate amount ability of the Debt Financing (including by changing the amount of fees Buyer or Merger Sub to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to timely consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financinghereby, or otherwise amends(B) amending, modifies modifying or expands any condition to supplementing the Debt Financing, in each case in any manner that would materially delay, impede conditions or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).contingencies to
Appears in 1 contract
Samples: Agreement and Plan of Merger (Apria Healthcare Group Inc)
Financing Efforts. (a) During the Interim PeriodEach of Parent and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially reasonable best efforts to take (or cause to be taken), all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the Closing Date as soon as reasonably practicable on the terms described and conditions contained in the Debt Commitment LetterFinancing Commitments (reflecting flex provisions to the extent exercised) and to consummate the Rollover Investment pursuant to the Rollover Letters in accordance with the terms thereof, including using commercially its reasonable best efforts to: to (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx comply with its obligations under the Debt Commitment Letter on or prior to Financing Commitments and the Closing Date; Rollover Letters, (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing Commitments on the terms and subject conditions (reflecting flex provisions to the extent exercised) no less favorable to Parent and Merger Sub than those contained in the respective Financing Commitments or on terms and conditions contemplated otherwise acceptable to Parent that would not (A) reduce the aggregate amount of the Financing unless the Rollover Investment is increased by a corresponding amount or (B) impose new or additional conditions precedent to, or delay, the Debt Commitment Letter receipt of the Financing, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub contained in the Financing Commitments (including definitive agreements related thereto) and the Rollover Letters, including the payment of any “market flex” provisions of commitment, engagement or placement fees required as a condition to the Fee LetterFinancing, and (iv) on consummate the Financing and the Rollover Investment at or prior to the Closing Date; Date (it being understood that it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, each of Parent and Merger Sub shall, and shall cause each of its Affiliates to, take all actions reasonably necessary to (i) maintain in effect each Financing Commitment and each Rollover Letter (it being understood that the Financing Commitments and the Rollover Letters may be replaced or amended as provided below) and (iiiii) consummate enforce all of its rights under each Financing Commitment (or any definitive agreements relating thereto) and each Rollover Letter. Parent shall keep the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent Company reasonably informed of the Plains Parties if status of its efforts to arrange the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing providing the amount Company with copies of fees material draft and definitive agreements and other material documents related to be paid or original issue discount thereofthe Financing) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).Rollover
Appears in 1 contract
Samples: Agreement and Plan of Merger (Perry Ellis International, Inc)
Financing Efforts. (a) During the Interim PeriodPurchaser shall, Oryx and shall use its commercially reasonable best efforts to take (cause Parent and their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken), all actions and do (to do, or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms and conditions described in or contemplated by the Debt Commitment LetterFinancing Commitments (including complying with any request exercising so-called “flex” provisions contained therein, to the extent required), including using commercially reasonable best efforts to: to (i) satisfymaintain in effect the Financing Commitments, or cause the satisfaction of, or obtain a waiver of, (ii) satisfy on a timely basis all conditions applicable that are within Parent’s control to Oryx under funding in the Debt Commitment Letter on or prior Financing Commitments and such definitive agreements to the Closing Date; be entered into pursuant thereto, (iiiii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing thereto on the terms and subject to conditions described in the conditions contemplated by the Debt Commitment Letter Financing Commitments (including any “market flex” provisions of the Fee Lettercontained therein) on or prior to the Closing Date; , (iv) enforce Parent’s rights under the Financing Commitments and (v) in the event that all conditions in the Financing Commitments have been satisfied, direct the applicable Financing Sources to fund on the Closing Date the Financing required to consummate the Sale and the other transactions contemplated hereby. To the extent requested by the Company from time to time, Purchaser shall keep the Company informed on a reasonably current basis of the status of its efforts to arrange the Financing (or Alternate Financing) and Purchaser shall provide to the Company copies of all material documents related to the Financing (or Alternate Financing). In the event any portion of the Financing becomes unavailable on the terms and conditions (including any “flex” provisions) contemplated in the Financing Commitments for any reason (A) Purchaser shall promptly notify the Company in writing and (B) Purchaser shall, and shall use its reasonable best efforts to, cause Parent and their respective Affiliates to use their respective reasonable best efforts to obtain, as promptly as practicable following the occurrence of such event, alternative debt financing from alternative debt financing sources (the “Alternate Financing”) in an amount sufficient to consummate the transactions contemplated by this Agreement, which would not (i) involve terms and conditions that are materially less beneficial to Parent, (ii) involve any conditions to funding the Financing that are not contained in the Financing Commitments and (iii) consummate reasonably be expected to prevent, impede or delay the Debt consummation of the transactions contemplated by this Agreement. In furtherance of, and not in limitation of, the foregoing, in the event that any portion of the Financing at becomes unavailable, regardless of the reason therefor, but any bridge facilities contemplated by the Financing Commitments (or prior alternative bridge facilities obtained in accordance with this Section 6.13(a)) are available on the terms and conditions described in Financing Commitments (or any replacement thereof), then Purchaser shall use its reasonable best efforts to cause the proceeds of such bridge financing to be used in lieu of such contemplated Financing as promptly as practicable. Without limiting the generality of the foregoing, Purchaser shall promptly notify the Company in writing (A) if Purchaser obtains knowledge that there exists any breach, default, repudiation, cancellation or substantially concurrently termination by any party to the Financing Commitments (or any event or circumstance that, with Closingor without notice, lapse of time or both, could reasonably be expected to give rise to any breach, default, repudiation, cancellation or termination), (B) of the receipt by Purchaser or its Affiliates of any written notice or other written communication from any lender or other debt financing source with respect to any actual breach, default, repudiation, cancellation or termination by any party to the Financing Commitments or (C) if for any reason Purchaser or any Affiliate of Purchaser believes in good faith that (I) there is (or there is reasonably likely to be) a dispute or disagreement between or among any parties to any Financing Commitments or any definitive document related to the Financing which would reasonably be expected to prevent, impede or delay the consummation of the transactions contemplated by this Agreement or would make the funding of the Financing less likely or (II) there is a reasonable possibility that it will not be able to obtain all or any portion of the Financing on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing. Oryx As soon as reasonably practicable, Purchaser shall not terminate provide any Debt Commitment Letter information reasonably requested by the Company relating to any circumstance referred to in clause (A), (B) or (C) of the immediately preceding sentence. None of Purchaser or its respective Affiliates shall (without the prior written consent of the Plains Parties if the available cash on hand of OryxCompany) consent or agree to any amendment, together with any Substitute Financing Commitments or equity commitmentsreplacement, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit any amendment supplement or modification to be made to, consent to or any waiver of any provision under, the Financing Commitments or remedy of, or replace the Debt Commitment Letter or Fee Letter definitive agreements relating to the Financing if such amendment, modificationreplacement, supplement, modification or waiver or replacement (x1) reduces decreases the aggregate amount of the Debt Financing (including by changing the to an amount of fees to that would be paid or original issue discount thereof) below the less than an amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary that would be required to consummate the transactions Sale and make the other payments required to be made by Purchaser or the Company hereunder or otherwise contemplated hereby in connection herewith and thereby, unless Oryx will otherwise have available cash sufficient to consummate repay or refinance the Oryx Refinancing and pay all other amounts pursuant to debt contemplated in this Agreement or the Financing Commitments (together with other reasonably available financial resources of Purchaser and the other Transaction Documentsits Affiliates), (y2) imposes any new or additional condition conditions in each case which would reasonably be expected to the Debt Financingprevent, delay, or otherwise amends, modifies impair the availability of the Financing when required to be funded or expands any condition the satisfaction of the conditions to obtaining the Debt Financing, in each case in any manner that would materially delay, impede or prevent on the funding of the Debt Financing or consummation of the Contemplated Transactions Closing Date or (z3) is adversely impacts the ability of a type that is not described in Parent to enforce its rights against the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions other parties to the Closing set forth in Section 7.1(a)Financing Commitments. Purchaser shall, Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable best efforts to cause Parent and their respective Affiliates to, use their reasonable best efforts to maintain the effectiveness of the Financing Sources providing Commitments until the Debt Financing to fund on or before the Closing Date (whichtransactions contemplated by this Agreement are consummated; provided, however, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against Purchaser may amend, replace, supplement and/or modify the Financing Sources). For the avoidance of doubt, subject to clauses Commitments solely (x), (y1) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement).,
Appears in 1 contract
Financing Efforts. (a) During the Interim PeriodEach of Parent and Merger Sub shall, Oryx and shall cause each of its Affiliates to, use its commercially reasonable best efforts to take (or cause obtain the Financing not later than the date the Closing is required to be taken)effected in accordance with Section 1.2, all actions and do (or cause to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms described and conditions contained in the Debt Commitment LetterFinancing Commitments (including the flex provisions) and to consummate the Rollover Investment pursuant to the Rollover Letter in accordance with the terms thereof, including using commercially its reasonable best efforts to: to (i) satisfy, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx comply with its obligations under the Debt Commitment Letter on or prior to Financing Commitments and the Closing Date; Rollover Letter, (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing Commitments on the terms and subject conditions (including flex provisions) no less favorable to Parent and Merger Sub than those contained in the Financing Commitments, (iii) satisfy on a timely basis all conditions applicable to Parent and Merger Sub contained in the Financing Commitments (including definitive agreements related thereto) and the Rollover Letter within their control, including the payment of any commitment, engagement or placement fees required as a condition to the conditions contemplated by Financing, and (iv) consummate the Debt Commitment Letter (including any “market flex” provisions of Financing and the Fee Letter) on Rollover Investment at or prior to the Closing Date; Date (it being understood that it is not a condition to Closing under this Agreement, nor to the consummation of the Merger, for Parent or Merger Sub to obtain the Financing, the Rollover Investment or any alternative financing). Notwithstanding anything to the contrary in the immediately preceding sentence, each of Parent and Merger Sub shall, and shall cause each of its Affiliates to, take all actions reasonably necessary to (i) maintain in effect the Financing Commitments and the Rollover Letter and (iiiii) consummate enforce all of its rights under the Debt Financing at Commitments (or prior any definitive agreements relating thereto) and the Rollover Letter. Notwithstanding any contrary provision of this Agreement, in no event shall Parent, Merger Sub or any of their Affiliates be obligated to or substantially concurrently with Closingcommence any legal action against any Lender. Oryx Parent shall not terminate any Debt Commitment Letter without keep the prior written consent Company informed on a regular basis and in reasonable detail of the Plains Parties if status of its efforts to arrange the available cash on hand Financing (including providing the Company with copies of Oryxdraft and definitive agreements and other documents related to the Financing) and the Rollover Investment. Without limiting the generality of the foregoing, together Parent and Merger Sub shall give the Company prompt notice (x) of any material breach or default by any other party to any of the Financing Commitments, the Equity Commitment Letter, the Rollover Letter or definitive agreements related to the Financing of which Parent or Merger Sub becomes aware, (y) of the receipt of (A) any written notice or (B) other written communication, in each case from any Person with respect to any Substitute (1) actual or potential breach, default, termination or repudiation by any party to any of the Financing Commitments Commitments, the Equity Commitment Letter, the Rollover Letter or equity commitmentsdefinitive agreements related to the Financing of any provisions of the Financing Commitments, would not the Equity Commitment Letter, the Rollover Letter or definitive agreements related to the Financing or (2) material dispute or disagreement between or among any parties to any of the Financing Commitments, the Equity Commitment Letter, the Rollover Letter or definitive agreements related to the Financing with respect to the obligation to fund the Financing or the amount of the Financing to be sufficient to satisfy Oryx’s obligations under this Agreement and funded at the Closing or to consummate the transactions contemplated hereby Rollover Investment or the amount of shares of Common Stock and Units to be contributed on the Closing Date, and (z) if at any time for any reason Parent or Merger Sub believes in good faith that it will not be able to obtain all or any portion of the Financing or the Rollover Investment on the terms and conditions (including any market flex) contemplated by any of the Oryx Refinancing Financing Commitments, the Equity Commitment Letter, the Rollover Letter or definitive agreements related the Financing. As soon as reasonably practicable, Parent and pay all other amounts pursuant Merger Sub shall provide any information reasonably requested by the Company relating to this Agreement and any circumstance referred to in clause (x), (y) or (z) of the other Transaction Documents immediately preceding sentence. Prior to the Closing, Parent or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx Merger Sub shall not, without the prior written consent of Plains Parentthe Company, permit amend, modify, supplement or waive any amendment of the conditions or contingencies to funding contained in the Financing Commitments (or definitive agreements related thereto) or the Rollover Letter, in each case, to the extent such amendment, modification or supplement or waiver, individually or in the aggregate, could reasonably be expected to have the effect of (A) adversely affecting the ability or likelihood of Parent or Merger Sub to timely consummate the transactions contemplated by this Agreement or (B) amending, modifying or supplementing the conditions or contingencies to the Financing in a manner that makes it less likely the Financing will be made tofunded or imposing new or additional conditions or expanding any existing condition to the receipt of the Financing; provided, consent to any waiver of any provision or remedy ofthat Parent and Merger Sub may amend, modify, supplement, restate or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributableCommitment Letter, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to foregoing clauses (x), (yA) and (z) aboveB), nothing herein shall prevent Oryx from replacing with Parent or amending the Debt Commitment Letter in order Merger Sub to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared promptly deliver to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution Company copies of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver supplement, restatement or replacement).. In the event all conditions applicable to the Financing Commitments and/or the Rollover Letter have been satisfied, Parent shall use its reasonable best efforts to cause the Lenders, Sponsor and the Rollover Investors to fund the Financing and make the Rollover Investment, as applicable, required to consummate the
Appears in 1 contract
Financing Efforts. (a) During Townsquare has delivered to Cumulus true, correct and complete copies, as of the Interim Perioddate of this Agreement, Oryx shall of (i) a commitment letter in effect as of the date hereof by and among Townsquare, Townsquare Holdings LLC (“Holdings”) and the incremental lenders party thereto (the “Term Loan Commitment Letter”), (ii) a commitment letter in effect as of the date hereof by and among Townsquare, Holdings and the bridge lead arrangers party thereto (the “Bridge Commitment Letter”) and (iii) a commitment letter in effect as of the date hereof by and among Townsquare Media, LLC and the initial purchasers thereto (the “Senior Notes Commitment Letter”, and together with the Term Loan Commitment Letter and the Bridge Commitment Letter, the “Financing Letters”) pursuant to which each of the financial institutions party thereto (the “Lenders”) have committed to provide, subject to the terms and conditions set forth in each respective Financing Letter, financing in the amounts set forth in each respective Financing Letter (collectively, the “Financing”). Cumulus will use its commercially reasonable efforts to take provide, and to cause its officers, employees and advisors (or cause including its independent auditors) to be taken)provide, to Townsquare all actions such reasonable assistance and do (or cause cooperation reasonably requested by Townsquare that is customary and reasonably necessary to be done), all things necessary, proper or advisable to maintain in effect, arrange and consummate the Debt Financing on or before the Closing Date on the terms described assist Townsquare in the Debt Commitment Letterarrangement, including using commercially reasonable efforts to: obtainment and syndication of any Financing contemplated by the Financing Letters or any Alternative Financing. Such cooperation shall include, without limitation, furnishing Townsquare as promptly as reasonably practicable following the delivery of a written request therefor to Cumulus by Townsquare any and all financial information regarding the Cumulus Stations that is (i) satisfy, or cause requested by the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior counterparties to the Closing Date; Financing Letters pursuant to the terms thereof, (ii) negotiate and enter into definitive agreements (to reasonably required in connection with the extent not already entered into) with respect to the Debt Financing on the terms and subject to the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions execution of the Fee Letter) on or prior to the Closing Date; and Financing and/or (iii) consummate the Debt Financing at or prior to or substantially concurrently with Closing. Oryx shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate permit Townsquare to prepare the transactions contemplated thereby and hereby). Oryx shall notpro forma balance sheets, without the prior written consent of Plains Parent, permit any amendment financial statements and/or offering or modification to be made to, consent to any waiver of any provision or remedy of, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financingsimilar documents and/or deliver financial information, in each case case, in any manner that would materially delayreference to the Cumulus Stations as required pursuant to conditions 7, impede or prevent the funding 8 and 9 of the Debt Financing or consummation Bridge Commitment Letter and conditions 7 and 8 of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occurSenior Notes Commitment Letter. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx Cumulus shall use its commercially reasonable efforts to cause its independent auditors to reasonably cooperate with Townsquare (subject to Townsquare's reimbursement obligation as set forth in this Section 5.19(a), to the extent applicable), to the extent contemplated by the Financing Sources providing Letters, including commercially reasonable efforts to cause its independent auditors to provide Townsquare with audited financial statements for the Debt Financing to fund on or Cumulus Stations for the most recently completed fiscal year ended at least 90 days before the Closing Date (whichand customary “comfort letters” and an “agreed upon procedures letter” in respect thereof, in each case as contemplated by the relevant condition in the Bridge Commitment Letter. Townsquare shall reimburse Cumulus for any third-party costs incurred solely as a result of such assistance and cooperation, including the avoidance costs of doubtits independent auditors but excluding attorneys’ fees incurred in connection with review of the Financing Agreements and the other matters contemplated by this Agreement; provided that any such third party fees shall be approved in writing in advance by Townsquare and; provided, further, that Cumulus’s assistance and cooperation, which requires the incurrence of such third party fees not approved by Townsquare, shall include invoking its rights under the Debt Commitment Letter up be limited to but excluding the initiation what Cumulus can provide without incurring such third party fees or other related expenses. Cumulus will deliver to Townsquare any payoff letters, lien releases (including UCC-3 termination statements) and instruments of any Proceedings against termination or discharge as reasonably required in the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacement)Letters.
Appears in 1 contract
Samples: Asset Purchase and Exchange Agreement (Townsquare Media, LLC)
Financing Efforts. (a) During the Interim Period, Oryx The Evolent Entities shall use its commercially reasonable best efforts to take (take, and shall cause their Affiliates and Representatives to take, or cause to be taken), all reasonable actions and do (to do, or cause to be done), all things necessary, proper reasonably necessary or advisable to maintain in effect, arrange and consummate obtain the Debt Financing on or before the at Closing Date on the terms and conditions described in the Debt Commitment Letter, including using commercially reasonable best efforts to: (i) satisfyto maintain in effect the Commitment Letter until the consummation of the Closing and the other transactions contemplated hereby and to comply with their obligations, or cause including the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on at or prior to the Closing Date; of all conditions to the funding of the Debt Financing under the Commitment Letter, (ii) to negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject to conditions consistent with those set forth in the conditions contemplated by the Debt Commitment Letter (including any “market flex” provisions of the therein or in any Fee Letter) on or prior to the Closing Date; ), and (iii) to consummate the Debt Financing at or prior to or substantially or, concurrently with with, the Closing. Oryx The Evolent Entities shall not terminate any Debt Commitment Letter without the prior written consent of the Plains Parties if the available cash on hand of OryxCompany, together with any Substitute Financing Commitments not to be unreasonably withheld, conditioned or equity commitmentsdelayed, would not be sufficient consent to satisfy Oryx’s obligations under this Agreement and to consummate the transactions contemplated hereby or cause (including the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall not, without the prior written consent of Plains Parent, permit a) any amendment or modification to be made to, consent to or any waiver of any provision or remedy ofunder, or replace the Debt Commitment Letter or Fee Letter if such amendment, modificationmodification or waiver (i) imposes new or additional conditions, waiver or replacement otherwise expands any of the conditions, to the receipt of the Debt Financing in a manner that would reasonably be expected to delay or prevent the Closing, or (xii) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees committed to be paid or original issue discount thereof) funded at Closing below the amount necessary Required Amounts or (iii) permits or effects any assignment, release or termination of the Commitment Letter or of the obligations of any counterparty thereto (provided, that nothing herein shall foreclose the Financing Sources party to effectuate the Oryx Refinancing and pay all Commitment Letter from making assignments to their respective Affiliates in accordance with the terms hereof), (b) any other amounts pursuant amendment, modification to, or any waiver of any provision under, the Commitment Letter that would reasonably be expected to this Agreement and adversely affect the other Transaction Documents or otherwise necessary ability of the Evolent Entities to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to by this Agreement and the other Transaction Documents, (y) imposes any new or additional condition prior to the Debt FinancingTermination Date (provided, or otherwise amendsthat, modifies or expands so long as any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that such event is not described in the foregoing clause otherwise prohibited by this sentence, (x) the Evolent Entities may replace or (y) and would otherwise be reasonably likely to make amend the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace entities that have not executed the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment Letter, provide the same to the Plains Parties and at such time shall be deemed to have made the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “as of the date hereof, in each case to the extent contemplated by the Commitment Letter and (y) the exercise of any unredacted “flex” or similar phrasing to provisions in any Fee Letter will not be deemed a reference an amendment, modification or waiver under the Commitment Letter under this Section 4.9), (c) any other amendment, modification to, or any waiver of any provision under, the Commitment Letter that would reasonably be expected to (i) make the funding of any portion of the Debt Financing (or satisfaction of the conditions to obtaining any portion of the Debt Financing) less likely to occur, (ii) adversely impact the ability of the Evolent Entities to enforce its rights against the other parties to the date Commitment Letter or the definitive agreements with respect thereto in any material respect, or (iii) delay or prevent the funding of such amendmentany portion of the Debt Financing at the Closing, modificationor (d) any early termination of the Commitment Letter unless it is replaced with a new commitment that, waiver or replacementwere it structured as an amendment to the existing Commitment Letter, would satisfy the requirements of this Section (the foregoing clauses (a) through (d), collectively, an “Adverse Effect on Financing”). The Evolent Entities shall, upon reasonable request of the Company, keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to obtain and finalize the Debt Financing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Evolent Health, Inc.)
Financing Efforts. (a) During the Interim Period, Oryx Parent shall use its commercially reasonable best efforts to take (take, or cause to be taken), all actions actions, and do (to do, or cause to be done), all things necessary, proper or advisable necessary to maintain in effect, arrange and consummate the Debt Financing or any Substitute Financing on or before the Closing Date on terms, and subject to the terms described conditions, set forth in the Debt Commitment Letter, including using commercially its reasonable best efforts to: to (i) satisfycomply with and maintain in effect the Commitment Letter, or cause the satisfaction of, or obtain a waiver of, on a timely basis all conditions applicable to Oryx under the Debt Commitment Letter on or prior to the Closing Date; (ii) negotiate and enter into definitive agreements (to the extent not already entered into) with respect to the Debt Financing on the terms and subject conditions contained in the Commitment Letter (or with conditions no less favorable to Parent than the conditions set forth in the Commitment Letter), (iii) satisfy on a timely basis all the conditions to the Financing and the definitive agreements related thereto and (iv) not take or fail to take any action that would reasonably be expected to prevent or delay the availability of the Financing on the terms and conditions contemplated by the Debt Commitment Letter. Parent shall, after obtaining Knowledge thereof, give the Company prompt written notice of any (A) material breach or default by a Financing Party or any party to the Commitment Letter or any definitive document related to the Financing or (including any “market flex” provisions B) withdrawal, repudiation or termination of the Fee Letter) on or prior Financing by the Financing Parties. In the event that all conditions to the Closing Date; and Commitment Letter have been satisfied (iii) consummate other than the Debt consummation of the Merger), Parent shall use its reasonable best efforts to cause the Financing Parties to fund the amount of the Financing at or prior to or substantially concurrently with the Closing. Oryx shall not terminate any Debt Commitment Letter without , to the prior written consent of extent the Plains Parties if the available cash on hand of Oryx, together with any Substitute Financing Commitments or equity commitments, would not be sufficient to satisfy Oryx’s obligations under this Agreement and proceeds thereof are required to consummate the Closing, the Merger and the other transactions contemplated hereby (including by this Agreement. In the Oryx Refinancing and pay all event that new commitment letters are entered into in accordance with any amendment, replacement, supplement or other amounts modification of the Commitment Letter permitted pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated thereby and hereby). Oryx shall notSection 7.07, without the prior written consent of Plains Parent, permit any amendment or modification such new commitment letters will be deemed to be made to, consent a part of the “Financing” and deemed to be the “Commitment Letter” for all purposes of this Agreement. Parent shall promptly (and in any waiver event within one Business Day after its receipt thereof) deliver to the Company copies of any provision or remedy oftermination, or replace the Debt Commitment Letter or Fee Letter if such amendment, modification, waiver or replacement (x) reduces the aggregate amount of the Debt Financing (including by changing the amount of fees to be paid or original issue discount thereof) below the amount necessary to effectuate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents or otherwise necessary to consummate the transactions contemplated hereby and thereby, unless Oryx will otherwise have available cash sufficient to consummate the Oryx Refinancing and pay all other amounts pursuant to this Agreement and the other Transaction Documents, (y) imposes any new or additional condition to the Debt Financing, or otherwise amends, modifies or expands any condition to the Debt Financing, in each case in any manner that would materially delay, impede or prevent the funding of the Debt Financing or consummation of the Contemplated Transactions or (z) is of a type that is not described in the foregoing clause (x) or (y) and would otherwise be reasonably likely to make the funding of the Debt Financing less likely to occur. If all conditions to the Closing set forth in Section 7.1(a), Section 7.1(b), Section 7.2 and Section 7.3 shall have been previously satisfied or waived (other than any condition the failure of which to be satisfied is attributable, in whole or in part, to a breach by Oryx or any member of the Oryx Group of such Person’s representations, warranties, covenants or agreements contained herein and those conditions that by their terms are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions), Oryx shall use its commercially reasonable efforts to cause the Financing Sources providing the Debt Financing to fund on or before the Closing Date (which, for the avoidance of doubt, shall include invoking its rights under the Debt Commitment Letter up to but excluding the initiation of any Proceedings against the Financing Sources). For the avoidance of doubt, subject to clauses (x), (y) and (z) above, nothing herein shall prevent Oryx from replacing or amending the Debt Commitment Letter in order to add lead arrangers, bookrunners, syndication agents or similar entities which had not executed the Debt Commitment Letter as of the date hereof and amend the economic or other arrangements among the existing and additional lenders, lead arrangers, bookrunners, syndication agents or similar entities, or to replace the commitment parties with new commitment parties if the addition of such additional parties does not reduce the aggregate net amount to be funded under the Debt Commitment Letter at the Closing as compared to the amount to be funded at the Closing under the Debt Commitment Letter as in effect on the date hereof. Oryx shall, upon execution of any amendment, modification, waiver or replacement of the Debt Commitment LetterLetter or any fee letters. Parent will not amend, provide modify, waive or replace the same Commitment Letter in a manner that adds material conditions precedent to the Plains Parties funding of the Financing on the Closing Date or that could otherwise reasonably be expected to impair, delay or prevent the availability of all or a part of the Financing in any material respect, without the Seller’s prior written consent (it being understood and at such time shall be deemed agreed that, in any event, Parent may amend the Commitment Letter to add lenders, arrangers, bookrunners, agents, managers or similar entities that have made not executed the representations and warranties set forth in Section 5.17 with respect to the Debt Commitment Letter, as so amended, modified, waived or replaced (with each reference to “Letter as of the date hereof” or similar phrasing to be deemed a reference to the date of such amendment, modification, waiver or replacementthis Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cascade Microtech Inc)
