Financing Obligation. (a) Each of Acquiror and Parent shall, and shall cause their applicable Subsidiaries to, use reasonable best efforts to obtain the Financing on or prior to the Closing Date in an amount, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this Agreement, sufficient to pay the Required Amount, including by (i) complying with its obligations under the Debt Financing Commitment Letter, (ii) maintaining in effect the Debt Financing Commitment Letter or the definitive financing agreements related to the Financing (the “Definitive Agreements”) in accordance with the terms and conditions thereof, (iii) negotiating and entering into Definitive Agreements on a timely basis on terms and conditions (including any “market flex” provisions) contained in the Debt Financing Commitment Letter or such other terms and conditions as Parent may determine, so long as such other terms and conditions would not constitute a Prohibited Modification, (iv) enforcing its rights under the Debt Financing Letters or the Definitive Agreements, (v) satisfying, or causing to be satisfied (or, if applicable, obtaining waivers of), on or prior to the Closing Date all conditions applicable to Acquiror, Parent and/or their Subsidiaries contained in the Debt Financing Commitment Letter (or any Definitive Agreements), including the payment of any commitment, engagement or placement fees required as a condition to the initial funding of the Financing and (vi) otherwise taking, or causing to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper and advisable to arrange and obtain the Financing; provided that, notwithstanding anything herein to the contrary, the documentation related to the bridge loan facility contemplated by the Debt Financing Commitment Letter and the funding thereunder shall not be required unless and until necessary to obtain funds sufficient to pay the Required Amount on the Closing Date. Acquiror shall keep the Company informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange the Financing, including, for the avoidance of doubt, notifying the Company of any reduction in the aggregate principal amount of the Debt Financing in connection with Acquiror or Parent obtaining other Financing in lieu thereof as contemplated by the Debt Financing Commitment Letter and permitted hereby and thereby. Acquiror shall give the Company prompt written notice (A) upon having knowledge of any material violation, material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material violation, material breach or material default) by any party to the Debt Financing Commitment Letter or the Definitive Agreements or any early termination of the commitments thereunder (other than any termination in accordance with the terms thereof), (B) of any written notice or other written communication from any Debt Financing Source with respect to any actual or threatened breach, default, termination or repudiation by any party to the Debt Financing Commitment Letter or the Definitive Agreements of any provision thereof or (C) if for any reason Acquiror has determined in good faith that it will not be able to obtain all or any portion of the Debt Financing on the terms contemplated by the Debt Financing Commitment Letter or the Definitive Agreements in an amount sufficient, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this Agreement, to pay the Required Amount. As soon as reasonably practicable, Acquiror shall provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence. (b) Neither of Parent nor Acquiror shall, without the prior written consent of the Company, amend, modify, supplement, waive (or otherwise grant consent under) the Debt Financing Commitment Letter (or any Definitive Agreement) or replace (including via the issuance of New Company Notes (as defined in the Debt Financing Commitment Letter as in effect on the date hereof) or the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect on the date hereof)) all or any portion of the commitments in respect of the Debt Financing or, if applicable, provided under the Definitive Agreements, in each case, to the extent such amendment, modification, supplement, replacement or waiver would reasonably be expected to (u) reduce the amount of the Debt Financing to an amount that would result in Acquiror having insufficient funds, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger or the other transactions contemplated by this Agreement, to pay the Required Amount, (v) otherwise adversely affect the ability of Acquiror to consummate the transactions contemplated by this Agreement on the Closing Date, including the ability to pay the Required Amount in full, (w)(i) impose new or additional conditions precedent to the initial funding of the Debt Financing other than as contemplated by the Debt Financing Commitment Letter (as in effect on the date hereof) (or the Definitive Agreements, as applicable) or (ii) otherwise modify the conditions precedent to the initial funding of the Debt Financing (as in effect on the date hereof) in a manner reasonably expected to delay, prevent or impede the funding of the Debt Financing (or satisfaction of the conditions precedent to the Debt Financing) on the Closing Date or make such funding materially less likely to occur, (x) delay in any material respect the Closing, (y) adversely affect the termination provisions of the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) or (z) adversely affect the ability of Acquiror to enforce its rights against the other parties to the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) (clauses (u) through (z), “Prohibited Modifications”); provided, however, subject to compliance with the other provisions of Section 6.18, ▇▇▇▇▇▇ and Acquiror may amend, modify, supplement or waive any provision of the Debt Financing Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the Debt Financing Commitment Letter as of the date hereof, in each case, as contemplated by the Debt Financing Commitment Letter on the date hereof. As soon as reasonably practicable, Acquiror will provide the Company with true, correct and complete executed copies of any amendment or supplement to, or modification of or waiver under, the Debt Financing Letters (it being agreed that copies of any fee letters may be delivered in redacted form removing only the fee amounts, pricing terms, pricing caps, “market flex” provisions and other economic terms therein). Notwithstanding anything to the contrary in the foregoing, to the extent that the Debt Financing contemplated by the Debt Financing Commitment Letter is replaced in whole or in part by the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect on the date hereof), the parties hereto acknowledge and agree that the definitive documentation with respect to such Qualifying Loan Facility shall constitute Definitive Agreements and such Qualifying Loan Facility shall constitute a Debt Financing for purposes of, and shall be subject to the provisions of, this Section 6.18(b) and Section 6.18(c). (c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions of the Debt Financing Commitment Letter (except in accordance with its terms) (including the “market flex” provisions thereof), Acquiror shall (i) notify as soon as reasonably practicable (and in any event within three (3) Business Days) the Company of such event and (ii) use its reasonable best efforts to obtain, on or prior to the Closing Date, the alternative financing from the same or alternative sources, which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to any portion of the Debt Financing that is and will be available and cash on hand and other sources of available funds, to pay in cash the Required Amount on terms and conditions that would not constitute a Prohibited Modification; provided that nothing contained in this Section 6.18 shall require, and in no event shall the “reasonable best efforts” of Parent, Acquiror or any of their Subsidiaries be deemed or construed to require, Parent, Acquiror or any such Subsidiary to seek or accept such alternative financing on terms materially less favorable in the aggregate than the terms and conditions described in the Debt Financing Commitment Letter (including the exercise of “market flex” provisions) as in effect on the date of this Agreement, as determined in the reasonable judgment of Acquiror. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any such alternative debt financing, and the term “Debt Financing Commitment Letter” as used in this Agreement shall be deemed to include any commitment letter entered into in respect of any such alternative debt financing. (d) Acquiror expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Closing and (ii) notwithstanding anything contained in this Agreement to the contrary, Acquiror’s obligations hereunder are not conditioned in any manner upon Acquiror obtaining the Debt Financing, or any other financing.
Appears in 1 contract
Sources: Merger Agreement (Kellanova)
Financing Obligation. (a) Each of Acquiror and Parent shall, and shall cause their applicable Subsidiaries to, use reasonable best efforts to obtain the Debt Financing on or prior to the Closing Date in an amount, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this AgreementAgreement and the other Transaction Agreements, sufficient to pay the Required Amount, including by (i) complying with its obligations under the Debt Financing Commitment Letterunder, (ii) and maintaining in effect the Debt Financing Commitment Letter or Letters and the definitive financing agreements related to the Financing (the “Definitive Agreements”) in accordance with the terms and conditions thereofParent Existing Credit Agreement, (iiiii) negotiating and entering into Definitive Agreements on a timely basis definitive agreements with respect to the Debt Financing (other than the Parent Existing Credit Agreement) on terms and conditions (including any “market flex” provisions) contained in the applicable Debt Financing Commitment Letter or such other terms and conditions as Parent may determine, so long as such other terms and conditions would not constitute a Prohibited Modification, (iv) enforcing its rights under the Debt Financing Letters or the Definitive Agreements, (viii) satisfying, or causing to be satisfied (or, if applicable, obtaining waivers of), on or prior to the Closing Date all conditions applicable to Acquiror, Parent and/or or their Subsidiaries contained in each of the Debt Financing Commitment Letter Letters (or any Definitive Agreements)definitive agreements including the Topco Financing Documents) and the Parent Existing Credit Agreement, including the payment of any commitment, engagement or placement fees required as a condition to the initial funding of the Debt Financing, (iv) in the event that all conditions contained in the Debt Financing Letters and any related definitive agreements (including the Topco Financing Documents) and the Parent Existing Credit Agreement have been satisfied (except those that, by their nature, are to be satisfied at the Closing) or waived, consummating the Debt Financing at or prior to the Closing, (v) enforcing its rights under the Debt Financing Letters and the definitive agreements (including the Topco Financing Documents) and the Parent Existing Credit Agreement and (vi) otherwise taking, or causing to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper and advisable to arrange and obtain the Financing; provided that, notwithstanding anything herein Debt Financing at or prior to the contraryClosing.
(b) At the Company’s written request, the documentation related to the bridge loan facility contemplated by the Debt Financing Commitment Letter and the funding thereunder Parent shall not be required unless and until necessary to obtain funds sufficient to pay the Required Amount on the Closing Date. Acquiror shall (i) keep the Company informed on a reasonably current basis and as promptly as practicable in reasonable detail of with respect to all material activity concerning the status of its efforts to arrange the Financing, including, for the avoidance of doubt, notifying Debt Financing and (ii) provide the Company with copies of any reduction in the aggregate principal amount of all executed definitive agreements related to the Debt Financing in connection with Acquiror or Parent obtaining other when available (including the Topco Financing in lieu thereof as contemplated by the Debt Financing Commitment Letter and permitted hereby and therebyDocuments). Acquiror shall give the Company prompt written notice (A) upon having knowledge of any material actual violation, material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to give rise to any material violation, material breach or material default) by any party to the Debt Financing Commitment Letter Letters, the Topco Financing Documents or the Definitive Agreements Parent Existing Credit Agreement or any early termination of the commitments thereunder under any of the foregoing (other than any termination in accordance with the terms thereofof the Debt Financing Letters), (B) of any written notice or other written communication from any Debt Financing Source or party to the Parent Existing Credit Agreement with respect to any (1) actual or threatened breach, default, termination or repudiation of any provision of the Debt Financing Letters, the definitive agreements with respect thereto (including the Topco Financing Documents) or the Parent Existing Credit Agreement by any party to any of the foregoing, or (2) dispute or disagreement between or among any parties to the Debt Financing Commitment Letter Letters or any definitive agreements related to the Definitive Agreements Debt Financing (including the Topco Financing Documents and the Parent Existing Credit Agreement) other than in respect of any provision disputes regarding the negotiation of the definitive documentation in respect thereof that would reasonably be expected to prevent or delay the Closing or (C) (1) the occurrence of an event or development that could reasonably be expected to adversely impact the ability of Parent to obtain or (2) if for any reason Acquiror Parent has determined in good faith that it will not be able to obtain obtain, all or any portion of the Debt Financing on the terms contemplated by each of the Debt Financing Commitment Letter Letters or the Definitive Agreements Parent Existing Credit Agreement, as applicable, in an amount sufficient, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this Agreement, to pay the Required Amount. As soon as reasonably practicable, Acquiror Parent shall provide any information reasonably requested by the Company relating to any circumstance of the circumstances referred to in clauses (A) through (C) the previous sentence as soon as reasonably practicable after the date that the Company delivers a written request to Acquiror; provided that Acquiror shall not be required to provide access to, or disclose, information that reasonably, in the reasonable judgment of the immediately preceding sentenceAcquiror, would be expected to result in the waiver of any attorney-client, work product or other applicable privilege or protection; provided that, in each case, the Acquiror shall provide the Company written notice of any information so withheld and shall use commercially reasonable efforts to disclose such information in a manner that is not reasonably likely to jeopardize the applicable privilege or violate the applicable confidentiality obligation.
(bc) Neither Prior to the Closing Date, neither of Parent nor Acquiror shall, without the prior written consent of the Company, amend, modify, supplement, waive (or otherwise grant consent under) the Debt Financing Commitment Letter (or any Definitive Agreement) or replace Letters, the definitive agreements with respect thereto (including via the issuance of New Company Notes (as defined in the Debt Topco Financing Commitment Letter as in effect on the date hereofDocuments) or the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect on the date hereof)) Parent Existing Credit Agreement or replace all or any portion of the commitments in respect of the Debt Financing or, if applicable, provided under the Definitive Agreements, in each case, to the extent such amendment, modification, supplement, replacement or waiver would reasonably be expected to (uv) reduce the aggregate amount of the Debt Financing to an amount that would result in Acquiror having insufficient funds, when taken together with available cash on hand and other sources of funds available to Parent and Acquiror to consummate the Merger or the other transactions contemplated by this AgreementAgreement and the other Transaction Agreements, to pay the Required Amount, (vw) otherwise adversely affect the ability of Parent or Acquiror to consummate the transactions contemplated by this Agreement and the other Transaction Agreements on the Closing Date, including the ability to pay the Required Amount in full, (w)(ix) (i) impose new or additional conditions precedent to the initial funding of the Debt Financing other than as contemplated by (which, for the Debt Financing Commitment Letter (as in effect on avoidance of doubt, shall include any funding under the date hereof) (or the Definitive Agreements, as applicableParent Existing Credit Agreement) or (ii) otherwise modify the conditions precedent to the initial funding of the Debt Financing (as in effect on the date hereof) (which, for the avoidance of doubt, shall include any funding under the Parent Existing Credit Agreement) in a manner reasonably expected to delay, prevent or impede the funding of the Debt Financing (or satisfaction of the conditions precedent to the Debt Financing) on the Closing Date or make such funding materially less likely to occur, (xy) delay in any material respect the Closing, (y) adversely affect the termination provisions of the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) Closing or (z) adversely affect impact the ability of the Acquiror or the Company, as applicable, to enforce its rights against the other parties to the Debt Financing Commitment Letter (Letters or the Definitive Agreements, as applicable) definitive agreements with respect to the Debt Financing (clauses (uv) through and (z), “Prohibited Modifications”); provided, however, subject to compliance with the other provisions of Section 6.186.17, ▇▇▇▇▇▇ Parent and Acquiror may amend, modify, supplement or waive any provision of the Debt Financing Commitment Letter Letters to add lenders, lead arrangers, bookrunners, syndication agents or similar entities that have not executed the applicable Debt Financing Commitment Letter as of the date hereof, in each case, hereof as contemplated by the Debt Financing Commitment Letter Letters on the date hereof. As soon as reasonably practicable, Acquiror will provide the Company with true, correct and complete executed copies of any amendment or supplement to, or modification of or waiver under, the Debt Financing Letters Letters, the definitive agreements with respect thereto (including the Topco Financing Documents) or the Parent Existing Credit Agreement (it being agreed that copies of any fee letters may be delivered in redacted form removing only the fee amounts, pricing terms, pricing caps, “market flex” provisions and other economic terms therein). Notwithstanding anything to the contrary in the foregoing, to the extent that consistent with the Debt Financing contemplated by the Debt Financing Commitment Letter is replaced in whole or in part by the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect Letters delivered on the date hereof). In such event, the parties hereto acknowledge term “Debt Financing” as used in this Agreement shall be deemed to include the Debt Financing, as amended, modified, supplemented, or waived, and agree that the definitive documentation with respect to such Qualifying Loan Facility shall constitute Definitive Agreements and such Qualifying Loan Facility shall constitute a term “Debt Financing for purposes of, and Commitment Letters” as used in this Agreement shall be subject deemed to include the provisions ofDebt Financing Commitment Letters, this Section 6.18(b) and Section 6.18(c)as amended, modified, supplemented, or waived.
(cd) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions of the applicable Debt Financing Commitment Letter Letters (except in accordance with its terms) ), the definitive agreements with respect thereto (including the “market flex” provisions thereofTopco Financing Documents), or the Parent Existing Credit Agreement, Acquiror shall (i) promptly notify as soon as reasonably practicable (and in any event within three (3) Business Days) the Company of such event and (ii) use its reasonable best efforts to obtain, on or prior to the Closing Date, the Date alternative financing from the same or alternative sources, which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to any portion of the Debt Financing that is and will be available and cash on hand and other sources of available funds, funds available to Parent and Acquiror to pay in cash the Required Amount on terms and conditions that would not constitute a Prohibited Modification; provided that nothing contained in this Section 6.18 6.17(d) shall require, and in no event shall the “reasonable best efforts” of Parent, Acquiror or any of their Subsidiaries be deemed or construed to require, Parent, Acquiror or any such Subsidiary to seek or (i) accept such alternative financing on terms materially interest rates, yield or fees protection less favorable to the Parent and Acquiror than provided for in the aggregate Debt Financing Commitment Letters as in effect on the date of this Agreement or (ii) terms taken as a whole, less favorable to Parent and Acquiror than the terms and conditions described in the each Debt Financing Commitment Letter (including the exercise of “market flex” provisions) as in effect on the date of this Agreement, as determined in the reasonable judgment of Acquiror. In such event, the term “Debt Financing” as used in this Agreement shall be deemed to include any such alternative debt financing, the term “Debt Financing Sources” as used in this Agreement (including with respect to Opco Debt Financing Sources and Topco Debt Financing Sources, as may be applicable), shall be deemed to include any such alternative debt financing sources, and the term “Debt Financing Commitment LetterLetters” as used in this Agreement shall be deemed to include any commitment letter entered into in respect of any such alternative debt financing.
(d) Acquiror expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Closing and (ii) notwithstanding anything contained in this Agreement to the contrary, Acquiror’s obligations hereunder are not conditioned in any manner upon Acquiror obtaining the Debt Financing, or any other financing.
Appears in 1 contract
Sources: Merger Agreement (Utz Brands, Inc.)
Financing Obligation. (a) Each of Acquiror and Parent Buyer shall, and shall cause their each of its Subsidiaries and applicable Subsidiaries Affiliates to, use its commercially reasonable best efforts to obtain the Equity Financing and the Debt Financing on or prior to the Closing Date terms and conditions in the Financing Commitments in an amount, when taken amount sufficient (together with available cash on hand of Buyer and other sources of funds available its Subsidiaries) to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this Agreement, sufficient to pay fund the Required Amount, including by (i) complying with its obligations under the Debt applicable Financing Commitment LetterCommitments, (ii) maintaining in effect the Debt applicable Financing Commitment Letter Commitments or the definitive financing agreements related to the Financing (the “Definitive Agreements”) in accordance with the terms and conditions thereof, (iii) negotiating and negotiating, entering into and delivering the definitive agreements with respect to the Debt Financing (the “Definitive Agreements Agreements”) on a timely basis on terms and conditions contained in the Debt Financing Commitments (including any the “market flex” provisionsprovisions contained in the Debt Financing Commitment) (or to the extent not contained in the Debt Financing Commitment, on such other customary terms), or otherwise not materially less favorable to Buyer in the aggregate than those contained in the Debt Financing Commitment Letter or such other terms (as in effect on the date of this Agreement and conditions as Parent may determine, so long as such other terms and conditions would not constitute a Prohibited Modificationincluding any “flex” provisions), (iv) satisfying (or obtaining a waiver of) on a timely basis all conditions applicable to Buyer and/or its Subsidiaries and Affiliates contained in the applicable Financing Commitments (or the Definitive Agreements related thereto) within their control, (v) enforcing all of its rights under the applicable Financing Commitments and the Definitive Agreements (provided that no litigation against the Debt Financing Letters Sources in their capacity as such shall be required) and (vi) subject to the satisfaction (or waiver) of the Definitive Agreementsconditions set forth in the applicable Financing Commitments and all conditions set forth in Sections 8.1 and 8.2 hereto to Buyer’s obligation to effect the Closing (in each case, (v) satisfying, or causing to other than those that can only be satisfied (or, if applicable, obtaining waivers ofat the Closing), on consummating the applicable Financing at or prior to the Closing Date all conditions applicable to AcquirorClosing. Upon request of Dublin, Parent and/or their Subsidiaries contained in the Debt Financing Commitment Letter (or any Definitive Agreements), including the payment of any commitment, engagement or placement fees required as a condition to the initial funding of the Financing and (vi) otherwise taking, or causing to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper and advisable to arrange and obtain the Financing; provided that, notwithstanding anything herein to the contrary, the documentation related to the bridge loan facility contemplated by the Debt Financing Commitment Letter and the funding thereunder shall not be required unless and until necessary to obtain funds sufficient to pay the Required Amount on the Closing Date. Acquiror Buyer shall keep the Company Dublin informed on a reasonably current basis and in reasonable detail of the status of its efforts to arrange obtain the Financing, applicable Financing (including, for upon reasonable request, providing Dublin with copies of all material Definitive Agreements related to the avoidance Debt Financing) and of doubt, notifying material developments concerning the Company timing of any reduction in the aggregate principal amount closing of the Debt Financing in connection with Acquiror or Parent obtaining other Financing in lieu thereof as contemplated by the Debt Financing Commitment Letter and permitted hereby and therebyFinancing. Acquiror Buyer shall give the Company Dublin prompt written notice (A) of any actual, or upon having knowledge of of, any material threatened, non-de minimis violation, material breach or material default (or any event or circumstance that, with or without notice, lapse of time or both, would could reasonably be expected to give rise to any material non-de minimis violation, material breach or material default) by any party to the Debt Financing Commitment Letter or the Definitive Agreements Commitments or any early termination of the commitments thereunder (other than any termination in accordance with the terms thereof)Financing Commitments, (B) of the receipt of any written notice or other written communication from any Debt Financing Source with respect to Person of any actual or, to the knowledge of Buyer, threatened, reduction (below an amount necessary (together with available cash on hand of Buyer and its Subsidiaries) to fund the Required Amount), withdrawal, repudiation or threatened breach, default, termination or repudiation of the Financing by any party to the Debt Financing Commitment Letter or the Definitive Agreements of any provision thereof Commitments or (C) if at any time for any reason Acquiror Buyer has determined in good faith that it will not be able to obtain all or any portion of the Financing on substantially the terms (including the “flex” provisions contained in the Debt Financing on the terms Commitment) contemplated by the Debt applicable Financing Commitment Letter or Commitments and the Definitive Agreements in an amount sufficientportion of Financing that remains available, when taken together with available cash on hand of Buyer and other sources of funds available its Subsidiaries, would be less than the amount necessary to Parent and Acquiror to consummate the Merger and the other transactions contemplated by this Agreement, to pay fund the Required Amount. As soon as reasonably practicable, Acquiror but in any event within two (2) Business Days following delivery by Dublin to Buyer of written request therefor, Buyer shall provide any information reasonably requested by the Company Dublin relating to any circumstance referred to in clauses (A) through (C) of the immediately preceding sentence.
(b) Neither of Parent nor Acquiror shallBuyer shall not, without the prior written consent of the CompanyDublin (such consent not to be unreasonably withheld, conditioned or delayed): amend, modify, supplement, supplement or waive (or otherwise grant consent under) any of the Debt conditions to funding contained in the Financing Commitment Letter (Commitments or any Definitive Agreement) Agreement or any other provision of, or remedies under, the Financing Commitments or any Definitive Agreements or replace (including via the issuance of New Company Notes (as defined in the Debt Financing Commitment Letter as in effect on the date hereof) or the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect on the date hereof)) all or any portion of the commitments in respect of the Debt Financing or, if applicable, provided under the Definitive AgreementsCommitments, in each case, to the extent such amendment, modification, supplement, replacement or waiver would reasonably be expected to have the effect of (uA) reduce reducing the aggregate amount of the Debt Financing to an amount that would result in Acquiror Buyer having insufficient funds, when taken together with funds (taking into account available cash on hand of Buyer and other sources of funds available to Parent and Acquiror to consummate the Merger or the other transactions contemplated by this Agreement, its Subsidiaries) to pay the Required Amount, (vB) otherwise adversely affect affecting the ability of Acquiror Buyer to timely consummate the transactions contemplated by this Agreement on the Closing DateAgreement, including the ability to pay the Required Amount in full, (w)(iC) impose new amending, modifying, supplementing or additional waiving any of the conditions precedent to the initial Financing in a manner adverse in any material respect to Seller or its Subsidiaries, (D) delaying or impeding the Closing or making the timely funding of the Debt Financing other than as contemplated by the Debt Financing Commitment Letter (as in effect on the date hereof) (or the Definitive Agreements, as applicable) or (ii) otherwise modify the conditions precedent to the initial funding of the Debt Financing (as in effect on the date hereof) in a manner reasonably expected to delay, prevent or impede the funding of the Debt Financing (or satisfaction of the conditions precedent to obtaining the Debt Financing) on the Closing Date or make such funding materially Financing less likely to occur, occur or (x) delay in any material respect the Closing, (yE) adversely affect the termination provisions of the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) or (z) adversely affect affecting the ability of Acquiror Buyer to enforce its rights against the other parties to the Debt Financing Commitment Letter (or the Definitive Agreements, as applicable) (clauses (u) through (z), “Prohibited Modifications”)Commitments; provided, however, subject to compliance with the other provisions of this Section 6.185.27(b), ▇▇▇▇▇▇ and Acquiror Buyer may (A) amend, modify, supplement or waive any provision of the Debt Financing Commitment Letter to add lenders, lead arrangers, bookrunners, syndication agents or similar entities Debt Financing Sources that have not executed the Debt Financing Commitment Letter as of the date hereofhereof to provide for the assignment and reallocation of a portion of the financing commitments contained therein and to grant customary approval rights to such additional arrangers and other entities in connection with such appointments (collectively “Joinder Amendments”), in each case, as contemplated by (B) amend the Debt Commitment Letter and Definitive Agreements with respect to the Debt Financing to implement any flex provisions applicable thereto and/or (C) to increase the aggregate principal amount of the Debt Financing in an amount sufficient to fund any original issue discount or upfront fees as a result of the exercise of the “flex” provisions of the Debt Commitment Letter on Letter. In the date hereofevent Buyer amends, modifies, supplements, replaces or waives the Financing Commitments or any Definitive Agreement in accordance with this Section 5.27(b), references to “Financing”, “Debt Financing Sources”, “Definitive Agreements” and “Financing Commitments” (and other like terms in this Agreement) as used in this Agreement shall be deemed to refer to the Financing as so amended, modified, supplemented, replaced or waived. As soon as reasonably practicableOther than with respect to Joinder Amendments, Acquiror will provide the Company with Buyer shall promptly deliver to Dublin true, correct and complete executed copies of any amendment or supplement to, or modification of or waiver under, the Debt Financing Letters Commitment Letter and Definitive Agreements as amended, modified, supplemented, replaced or waived in accordance with this Section 5.27(b) (it being agreed provided that copies of any fee letters letter in connection therewith may be delivered redacted in redacted form removing only a manner consistent with the redactions applied to the fee amounts, pricing terms, pricing caps, “market flex” provisions and other economic terms therein). Notwithstanding anything to the contrary in the foregoing, to the extent that the Debt Financing contemplated by the Debt Financing Commitment Letter is replaced in whole or in part by the incurrence of a Qualifying Loan Facility (as defined in the Debt Financing Commitment Letter as in effect letters delivered on the date hereofhereof pursuant to Section 4.6(a), the parties hereto acknowledge and agree that the definitive documentation with respect to such Qualifying Loan Facility shall constitute Definitive Agreements and such Qualifying Loan Facility shall constitute a Debt Financing for purposes of, and shall be subject to the provisions of, this Section 6.18(b) and Section 6.18(c).
(c) If all or any portion of the Debt Financing becomes unavailable on the terms and conditions of set forth in the Debt Financing Commitment Letter (except in accordance with its terms) (including the “market flex” provisions thereof) (in an aggregate amount, together with the Equity Financing and available cash on hand of Buyer and its Subsidiaries, below the Required Amount), Acquiror Buyer shall (i) notify as soon as reasonably practicable (and Dublin in any event within three (3) Business Days) the Company writing of such event and the reasons giving rise to such event, as promptly as practicable following the occurrence of such event, (ii) use commercially reasonable efforts, and as applicable, cause each of its Subsidiaries to use commercially reasonable best efforts efforts, to arrange and obtain, on or prior to as promptly as possible following the Closing Dateoccurrence of such event, the alternative financing for any such unavailable portion of the Debt Financing from the same or alternative sources, which may include one or more of a loan financing, an offering and sale of notes, or any other financing or offer and sale of other debt securities, or any combination thereof, in an amount sufficient, when added to any portion of the Debt Financing that is and will be available and (together with available cash on hand of Buyer and other sources of available fundsits Subsidiaries), to pay in cash the Required Amount (any such alternative financing, the “Alternative Debt Financing”) and (iii) if applicable, obtain a new financing commitment letter (together with the related term sheets and fee letters, the “Alternative Debt Financing Commitment”) or a new definitive agreement with respect thereto that provides for such Alternative Debt Financing (A) on terms that are not, in the aggregate, materially less favorable to Buyer than the terms of the Debt Financing Commitment (as in effect on the date of this Agreement) (taking into account the “flex” provisions thereof) and (B) containing conditions that (x) are not more onerous in any material respect to Buyer than those conditions contained in the Debt Financing Commitment as of the date hereof, (y) would not constitute a Prohibited Modificationreasonably be expected to delay the Closing and (z) do not adversely affect the ability of Buyer to enforce its rights, in any material respect, against the other parties to the Alternative Debt Financing Commitments (including all definitive documentation related thereto) relative to the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitments as in effect on the date hereof or in the related Definitive Agreements; provided that nothing contained in this Section 6.18 5.27(c) shall require, and in no event shall the “commercially reasonable best efforts” of Parent, Acquiror Buyer or any of their its Subsidiaries be deemed or construed to require, Parent, Acquiror Buyer or any such Subsidiary to seek or accept such alternative financing (i) the Financing or any Alternative Debt Financing on terms materially less favorable in the aggregate than the terms and conditions described in the Debt Financing Commitment Letter (including the exercise of “market flex” provisions) Commitments as in effect on the date of this AgreementAgreement (taking into account the “flex” provisions), as determined (ii) Alternative Debt Financing with a higher interest rate or fees (including original issue discount) than the Debt Financing Commitment in effect on the reasonable judgment of Acquirordate hereof, or (iii) other equity financing from any source. In such eventthe event Buyer obtains Alternative Debt Financing in accordance with this Section 5.27(c), references to “Debt Financing”, “Debt Financing Sources” and “Definitive Agreements” (and other like terms in this Agreement) as used in this Agreement shall be deemed to include any Alternative Debt Financing (and consequently the term “Financing” shall include the Equity Financing, any available portion of the then-existing Debt Financing and the Alternative Debt Financing), and the term “Debt FinancingFinancing Commitment” as used in this Agreement shall be deemed to include any such alternative debt financingAlternative Debt Financing Commitment. Buyer shall promptly deliver to Dublin true, correct and complete copies of the term “Alternative Debt Financing Commitment Letter” as used and other arrangements pursuant to which any Debt Financing Source have committed to provide any portion of the Alternative Debt Financing (provided that any fee letter in this Agreement shall connection therewith may be deemed redacted in a manner consistent with the redactions applied to include any commitment letter entered into in respect of any such alternative debt financingthe fee letters delivered on the date hereof pursuant to Section 4.6(a)).
(d) Acquiror ▇▇▇▇▇ expressly acknowledges and agrees that (i) obtaining the Debt Financing is not a condition to the Closing and (ii) notwithstanding anything contained in this Agreement to the contrary, Acquiror▇▇▇▇▇’s obligations hereunder are not conditioned in any manner upon Acquiror Buyer obtaining the Debt Financing, or any other financing.
Appears in 1 contract