Financing; Solvency. (a) Parent has delivered to the Company a true, complete and correct copy of the fully executed debt commitment letter, together with any related fee letters (in the case of the fee letters, redacted only for confidential provisions related to fees, flex terms and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), dated as of the date hereof, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein (together, including all exhibits, schedules and annexes, the “Debt Commitment Letter”), pursuant to which, upon the terms and subject only to the conditions set forth therein, the Debt Financing Sources party thereto have agreed to lend the amounts set forth therein (the “Debt Financing”). (b) Parent has delivered to the Company a true, complete and correct copy of the fully executed equity commitment letters, dated as of the date hereof, by and among The Veritas Capital Fund VI, L.P. (the “Equity Investor”) and Parent (the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which, upon the terms and subject to the conditions set forth therein, the Equity Investor has agreed to invest in Parent the amount set forth therein (the “Equity Financing”, and together with the Debt Financing, the “Financing”). The Equity Commitment Letter provides that the Company is an express, intended third-party beneficiary of, and is entitled to enforce, the Equity Commitment Letter. (c) As of the date hereof, the Commitment Letters are in full force and effect and constitute the valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto, enforceable against Parent and the other parties thereto in accordance with their terms (subject to the Enforceability Exceptions). As of the date hereof, there are no conditions precedent or subsequent related to the funding of the full amount of the Financing contemplated by the Commitment Letters, other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the “Financing Conditions”). (d) As of the date hereof, the Commitment Letters have not been amended, waived, supplemented or modified in any manner, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge of Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto. (e) As of the date hereof, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on the Closing Date. (f) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Commitment Letters by Parent or, to the knowledge of Parent, any other party thereto. (g) There are no side letters, understandings or other agreements or arrangements relating to the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters. (h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Letters to be paid on or prior to the date hereof. (i) Assuming the Financing is funded in accordance with the conditions set forth in the Financing Commitment Letters and assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, as of the date hereof, Parent will have at and as of the Closing sufficient available funds to consummate the Merger and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger (such amounts, collectively, the “Merger Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder. (j) Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement), assuming the representations and warranties in ARTICLE III (as qualified by the Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will be Solvent.
Appears in 1 contract
Financing; Solvency. (a) Parent is a party to and has delivered to the Company accepted a true, complete and correct copy of the fully executed debt commitment letter, together with any related fee letters (in the case of the fee letters, redacted only for confidential provisions related to fees, flex terms and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), letter dated as of the date hereof, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein this Agreement (together, including together with all exhibits, schedules and annexesannexes thereto and any associated fee letter, the “Debt Commitment Letter”), ) from the Debt Financing Entities pursuant to whichwhich the Debt Financing Entities have committed, upon subject to the terms and subject only conditions thereof, to the conditions set forth therein, the Debt Financing Sources party thereto have agreed to lend provide Parent and Merger Sub debt financing in the amounts set forth therein (therein. The debt financing contemplated by the Debt Commitment Letter is collectively referred to in this Agreement as the “Debt Financing.”).
(b) Parent is a party to and has delivered to the Company accepted a true, complete and correct copy of the fully executed equity commitment lettersletter, dated as of the date hereofof this Agreement, by and among The Veritas Capital between each of Apollo Investment Fund VIX, L.P., Apollo Overseas Partners (Delaware 892) X, L.P., Apollo Overseas Partners (Delaware) X, L.P., Apollo Overseas Partners X, L.P. and Apollo Overseas Partners (Lux) X, SCSP (the “Equity InvestorInvestors”) and Parent (collectively, the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”) ), pursuant to which, upon on the terms and subject to the conditions set forth therein, the Equity Investor has Investors have agreed to invest in Parent the amount set forth therein (therein. The equity financing committed pursuant to the Equity Commitment Letter is referred to in this Agreement as the “Equity Financing”, .” The Equity Financing and together with the Debt Financing, Financing are collectively referred to as the “Financing”). .” The Equity Commitment Letter provides that the Company is an express, intended express third-party beneficiary of, and is entitled to enforce, the Equity Commitment Letter.
(c) Parent has delivered to the Company a true, complete and correct copy of the executed Commitment Letters and any executed fee letters related thereto, subject, in the case of such fee letters, to redaction solely of fee amounts, “market flex” provisions (other than “structural” flex provisions), pricing terms and pricing caps and other terms that are customarily redacted (none of which could adversely affect the conditionality, enforceability, availability or termination of the Debt Financing or reduce the aggregate principal amount of the Debt Financing below the amount required to pay the Financing Amounts (after taking into account any available Equity Financing)).
(d) Except as expressly set forth in the Commitment Letters, there are no conditions precedent to the obligations of the Debt Financing Entities or the Equity Investors to provide the Financing or any contingencies that would permit the Debt Financing Entities or the Equity Investors to reduce the aggregate principal amount of the Financing below the amount required to pay the Financing Amounts, including any condition or other contingency relating to the amount or availability of the Financing pursuant to any “flex” provision. As of the date hereofof this Agreement and assuming the satisfaction or waiver of the conditions contained in Section 6.1 and Section 6.3 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time), Parent does not have any reason to believe that either Parent or Merger Sub will be unable to satisfy on a timely basis all terms and conditions required to be satisfied by it in any of the Commitment Letters, as applicable, on or prior to the Closing Date, nor does Parent or Merger Sub have knowledge that any Debt Financing Entity or any Equity Investor will not perform its obligations thereunder. As of the date of this Agreement, there are no side letters, agreements, or other Contracts of any kind to which Parent or Merger Sub is a party relating to the Commitment Letters or the Financing that could reasonably be expected to (i) adversely affect the conditionality or enforceability of, or termination rights under, the Commitment Letters or the availability of the Financing or (ii) reduce the aggregate amount of the Financing below the amount required to pay the Financing Amounts, other than as expressly contained in the Commitment Letters and delivered to the Company prior to the execution and delivery of this Agreement.
(e) Assuming that the conditions set forth in Section 6.1 and Section 6.3 (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) have been satisfied or waived, the aggregate proceeds contemplated by the Commitment Letters (including after giving effect to any “flex” provision in full force or related to the Debt Commitment Letter (including with respect to fees and effect original issue discount)), shall provide Parent and Merger Sub with cash proceeds at Closing sufficient for the satisfaction of all of their obligations under this Agreement and under the Commitment Letters, including the payment of the Merger Consideration, and any fees, costs and expenses of or payable by Parent or Merger Sub or Parent’s other Affiliates, and for any repayment or refinancing of any outstanding indebtedness of the Company and/or its Subsidiaries required in connection with the transactions described in this Agreement or the Commitment Letters at the Closing (such amounts, collectively, the “Financing Amounts”).
(f) As of the date of this Agreement, the Commitment Letters constitute the valid legal, valid, binding and binding obligation enforceable obligations of Parent and, to the knowledge of Parent, the other parties thereto, enforceable against Parent and all the other parties thereto and are in accordance with their terms (subject to the Enforceability Exceptions)full force and effect. As of the date hereof, there are no conditions precedent or subsequent related to the funding knowledge of Parent, no event has occurred which (with or without notice, lapse of time or both) constitutes, or could constitute, a default, breach or failure to satisfy a condition by Parent or Merger Sub under the full amount terms and conditions of the Financing contemplated by the Commitment Letters, . Parent and Merger Sub have paid in full any and all commitment fees or other than fees required to be paid pursuant to the conditions precedent set forth in terms of the Commitment Letters (such conditions precedent, the “Financing Conditions”).
(d) As of on or before the date hereofof this Agreement, and will pay in full any such amounts due on or before the Closing Date as and when due. The Commitment Letters have not been modified, amended or altered on or prior to the date hereof, none of the Commitment Letters will be amended, waivedmodified or altered at any time through the Closing, supplemented except as permitted by Section 5.11(a) (with any such modification, amendment or modified alteration promptly notified in any mannerwriting to the Company) and, and as of the date of this Agreement, none of the respective commitments contained therein under any of the Commitment Letters have not been terminated, reduced, withdrawn or rescinded in any respect by Parent orrespect, and, to the knowledge of ParentParent and Merger Sub, any other party thereto, and no such termination, reduction, withdrawal withdrawal, modification, amendment, alteration or rescission thereof is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(e) As of the date hereof, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on the Closing Date.
(f) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Commitment Letters by Parent or, to the knowledge of Parent, any other party theretocontemplated.
(g) There are no side letters, understandings or other agreements or arrangements relating Subject to the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Letters to be paid on or prior to the date hereof.
(i) Assuming the Financing is funded in accordance with the conditions set forth in the Financing Commitment Letters and assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, as of the date hereof, Parent will have at and as of the Closing sufficient available funds to consummate the Merger and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger (such amounts, collectively, the “Merger Amounts”Section 8.5(b). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment LettersFinancing) by or to Parent Parent, Merger Sub or any of its their Affiliates or any other financing transaction be a condition to any of Parent’s or Merger Sub’s obligations under this Agreement.
(h) No transfer of property is being made by Parent or Merger Sub, and no obligation is being incurred by Parent or Merger Sub in connection with the obligations transactions contemplated by this Agreement or the other Transaction Documents, with the intent to hinder, delay or defraud either present or future creditors of Parent or Merger Sub hereunder.
or any of their respective Subsidiaries. Assuming (jx) Immediately satisfaction or waiver of the conditions contained in Section 6.1 and Section 6.3, then as of the Effective Time and after giving effect to the consummation of the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this AgreementFinancing), assuming the representations and warranties in ARTICLE III (as qualified by the Surviving Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will be Solvent.. “Solvent” means, as of any time of determination, with respect to any Person, that:
Appears in 1 contract
Sources: Merger Agreement (Barnes Group Inc)
Financing; Solvency. (a) Parent has delivered to the Company a true, complete and correct copy of the fully executed debt commitment letter, together with any related fee letters (in the case of the fee letters, redacted only for confidential provisions related to fees, flex terms and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), dated as of the date hereofof this Agreement, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC the Financing Parties party thereto and Parent providing for debt financing as described therein (together, including all exhibits, schedules and annexesannexes and as amended pursuant to any amendment expressly permitted by Section 4.14(b), the “Debt Commitment Letter”), pursuant to which, upon the terms and subject only to the conditions set forth therein, the Debt Financing Sources Parties party thereto have agreed to lend the amounts set forth therein (the “Debt Financing”).
(b) Parent has delivered to the Company a true, complete and correct copy copies of the fully executed equity commitment letters, dated as of the date hereofof this Agreement, by and among The Veritas each of ▇▇▇▇▇▇▇ Associates, L.P., ▇▇▇▇▇▇▇ International, L.P., Brookfield Asset Management Inc. and Brookfield Capital Fund VI, Partners VI L.P. (the “Equity InvestorInvestors”) and Parent (the “Equity Commitment LetterLetters” and, together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which, upon the terms and subject to the conditions set forth therein, the Equity Investor has Investors have each agreed to invest in Parent the amount set forth therein in the respective Equity Commitment Letter (the “Equity Financing”, and together with the Debt Financing, the “Financing”). The Equity Commitment Letter provides Letters each provide that the Company is an express, intended a third-party beneficiary of, and is entitled to enforce, the such Equity Commitment Letter.
(c) Parent has delivered to the Company true, complete and correct copies of fee letters related to the Commitment Letters and of the Engagement Letter (as defined below), in each case subject to redaction solely for confidential provisions related to fees, flex terms and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or amount of the Financing contemplated thereby in any respect.
(d) As of the date hereofof this Agreement, the Commitment Letters are in full force and effect and constitute the valid valid, binding and binding obligation of Parent and, to the knowledge enforceable obligations of Parent, the other parties thereto, enforceable against Parent Financing Parties (to the Knowledge of Parent) and the Equity Investors and the other parties thereto (to the Knowledge of Parent), enforceable in accordance with their its terms (subject to the Enforceability Exceptions). As of the date hereof, there are no conditions precedent or subsequent related to the funding of the full amount of the Financing contemplated by the Commitment Letters, other Other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the “Financing Conditions”), there are no conditions precedent related to the funding of the full amount of the Financing contemplated by the Commitment Letters or any contingencies that would permit the Financing Parties or the Equity Investors to reduce the aggregate principal amount of the Financing, including any conditions precedent relating to the amount or availability of the Financing pursuant to any flex provisions.
(de) As of the date hereof, the The Commitment Letters have not been amended, waived, supplemented amended or modified in any manner, and will not be amended or modified in any manner at any time through the Effective Time, except as expressly permitted by Section 4.14(b) and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge of Parent, any other party theretorespect, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(ef) As of the date hereofof this Agreement, assuming the conditions in Sections 5.1 and 5.3 are satisfied as of the Closing, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date Effective Time or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on at the Closing DateEffective Time, nor does Parent have Knowledge that any Financing Party or Equity Investor will not perform its obligations under the Commitment Letters.
(fg) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred that, with or without notice, lapse of time or both, would constitutes or would reasonably be expected to could constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Commitment Letters by Parent or, to the knowledge of Parent, any other party theretoLetters.
(gh) There are no side letters, understandings or other agreements agreements, contracts or arrangements of any kind relating to the Commitment Letters or the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment LettersLetters and that certain engagement letter, dated as of the date of this Agreement, by and among the Financing Parties party thereto and Parent (the “Engagement Letter”).
(hi) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Letters to be paid on or prior to the date hereofof this Agreement.
(ij) Assuming the Financing is The Financing, when funded in accordance with the conditions set forth in the Financing Commitment Letters and assuming that each of giving effect to any flex provision in the conditions set forth in Sections 6.1 Debt Commitment Letter or related fee letters (including with respect to fees and 6.3 is satisfied at Closingoriginal issue discount), as of the date hereofapplicable, shall provide Parent will have with sufficient available funds at and as of the Closing sufficient available funds Effective Time to consummate the Merger Acquisition and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates in connection therewith, including payment of the aggregate Merger Offer Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the Acquisition and the other transactions contemplated hereby, the payment of any debt contemplated or required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger Acquisition and the other transactions contemplated hereby (including all Indebtedness of the Company and its Subsidiaries contemplated or required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger Acquisition and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger Acquisition (such amounts, collectively, the “Merger Acquisition Amounts”). As of the date hereofof this Agreement, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub Purchaser hereunder.
(jk) Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement), assuming that the representations and warranties set forth in ARTICLE III (as qualified by the Company Disclosure Schedule and the Company SEC Disclosures) Article 2 are true and correct in all material respects and respects, (i) Parent and its Subsidiaries, taken as a whole, will not have incurred Indebtedness beyond their ability to pay such Indebtedness in the ordinary course of business as it matures or becomes due, (ii) the then-present fair saleable value of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be Solventrequired to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and Indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conducted.
Appears in 1 contract
Financing; Solvency. (a) Parent Buyer has, or will have at the Effective Time, sufficient cash and currently-available funds on hand to enable it to pay the aggregate Merger Consideration in accordance with the terms of this Agreement, and Buyer will have, at the time such payments are due (if at all), sufficient cash and currently-available funds on hand to enable it to pay the Milestone Payment. Assuming the accuracy of Acquired Companies’ representations and warranties in Article V, immediately after giving effect to the Contemplated Transactions, Buyer and each of its Subsidiaries (including the Acquired Companies) (i) will be able to pay their respective debts and obligations in the Ordinary Course of Business as they become due, (ii) shall have adequate capital to carry on their businesses and all businesses in which they are about to engage and (iii) will have assets that have a fair saleable value (determined on a going concern basis) greater than the amounts required to pay their respective liabilities (including all liabilities, whether or not reflected in a balance sheet prepared in accordance with GAAP, and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed). Assuming the accuracy of Acquired Companies’ representations and warranties in Article V, immediately after giving effect to the Contemplated Transactions, Buyer and each of its Subsidiaries (including the Acquired Companies), will have adequate capital to carry on their respective businesses. No transfer of property is being made and no obligation is being incurred in connection with the Contemplated Transactions with the intent to hinder, delay or defraud either present or future creditors of Buyer or its Subsidiaries (including the Acquired Companies). Buyer has delivered to the Company true, correct and complete copies of the executed Second Amended and Restated Credit Agreement, among Buyer and the lenders thereto (as amended, the “Debt Financing Agreement”), pursuant to which the lenders thereto have committed, subject solely to the terms and conditions thereof, to lend the amounts set forth therein for the purpose of funding the transactions contemplated by this Agreement (the “Debt Financing”) and for the other purposes set forth therein. B▇▇▇▇ has also delivered to the Company a true, correct and complete and correct copy of the fully executed debt commitment letter, together with any related fee letters letter (in the case of the which may be redacted solely as to fee letters, redacted only for confidential provisions related to fees, flex terms amounts and other economic “market flex” terms, none of which so long as no redaction covers terms that would adversely affect the amount, conditionality, enforceability, availability, availability or termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), dated as of the date hereof, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein (together, including all exhibits, schedules and annexes, the “Debt Commitment Letter”), pursuant to which, upon the terms and subject only to the conditions set forth therein, the Debt Financing Sources party thereto have agreed to lend the amounts set forth therein (the “Debt Financing”).
(b) Parent has delivered to the Company a true, complete and correct copy of the fully executed equity commitment letters, dated as of the date hereof, by and among The Veritas Capital Fund VI, L.P. (the “Equity Investor”) and Parent (the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which, upon the terms and subject to the conditions set forth therein, the Equity Investor has agreed to invest in Parent the amount set forth therein (the “Equity Financing”, and together with the Debt Financing, the “Financing”). The Equity Commitment Letter provides that the Company is an express, intended third-party beneficiary of, and is entitled to enforce, the Equity Commitment Letter.
(c) As of the date hereof, the Commitment Letters are in full force and effect and constitute the valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto, enforceable against Parent and the other parties thereto in accordance with their terms (subject to the Enforceability Exceptions). As of the date hereof, there are no conditions precedent or subsequent related to the funding of the full amount of the Financing contemplated by the Commitment Letters, other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the “Financing Conditions”).
(d) As of the date hereof, the Commitment Letters have not been amended, waived, supplemented or modified in any manner, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge of Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(e) As of the date hereof, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on the Closing Date.
(f) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Commitment Letters by Parent or, to the knowledge of Parent, any other party thereto.
(g) There are no side letters, understandings or other agreements or arrangements relating to the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Letters to be paid on or prior to the date hereof.
(i) Assuming the Financing is funded in accordance with the conditions set forth in the Financing Commitment Letters and assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, as of the date hereof, Parent will have at and as of the Closing sufficient available funds to consummate the Merger and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger (such amounts, collectively, the “Merger Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Debt Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunderAgreements.
(j) Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement), assuming the representations and warranties in ARTICLE III (as qualified by the Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will be Solvent.
Appears in 1 contract
Financing; Solvency. (a) Parent As of the date hereof, ▇▇▇▇▇ has delivered to the Company Remainco and ▇▇▇▇▇▇ Partner (i) a true, correct and complete and correct copy of the fully executed debt commitment letter, dated as of the date hereof, from the Debt Financing Sources party thereto, together with true, correct and complete copies of any related executed fee letters (each, a “Fee Letter”); provided that, solely with respect to any Fee Letter, the economic and financial terms, including fee amounts, “market flex” provisions, “securities demand” provisions, pricing terms, pricing caps and other commercially sensitive terms (none of which, individually or in the case of the fee lettersaggregate, redacted only for confidential provisions related to feesadversely affects availability, flex terms and other economic termstiming, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby below the amount required to pay the Required Amount) may be redacted in any respect)a customary manner from such true, dated as of the date hereof, by correct and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein complete copies (togethercollectively, including all exhibits, schedules and annexesannexes thereto, the “Debt Commitment Letter”), pursuant to which, upon the terms and subject only to the terms and conditions set forth thereinthereof, the Debt Financing Sources party thereto have agreed committed to lend the amounts aggregate amount of Debt Financing set forth therein to Buyer for the purpose of funding the Contemplated Transactions on the date on which the Closing should occur pursuant to Section 1.3 (together with any Alternative Financing pursuant to Section 6.8, the “Debt Financing”).
) and (bii) Parent has delivered to the Company a true, correct and complete and correct copy of the fully executed equity commitment letters, dated as of the date hereof, by and among The Veritas Capital Fund VI, L.P. (the “Equity Investor”) and Parent (the “Equity Commitment Letter” and, Letter (together with the Debt Commitment Letter, the “Commitment LettersFinancing Commitments”) from each of the Guarantors, pursuant to whichwhich the Guarantors have, upon on the terms and subject to the conditions set forth therein, the Equity Investor has agreed committed to invest in Parent Buyer the amount amounts set forth therein (the “Equity Financing”” and, and together with the Debt Financing, the “Financing”). The Equity Commitment Letter expressly provides that Remainco and Merger Partner are third party beneficiaries thereof as provided therein.
(b) Assuming the Company Financing is an express, intended third-party beneficiary of, and is entitled to enforcefunded in accordance with the Financing Commitments, the Equity Commitment Letteraggregate net proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect of the maximum amount of “flex” (including any original issue discount flex) provided for under the Debt Financing) when funded in accordance with the Financing Commitments are sufficient to fund the Required Amount.
(c) As of the date hereof, the Commitment Letters Financing Commitments are in full force and effect and constitute the valid and binding obligation of Parent and, to the knowledge of Parent, the other parties thereto, enforceable against Parent and the other parties thereto in accordance with their terms (subject to the Enforceability Exceptions). As of the date hereof, there are no conditions precedent or subsequent related to the funding of the full amount of the Financing contemplated by the Commitment Letters, other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the “Financing Conditions”).
(d) As of the date hereof, the Commitment Letters have not been withdrawn, terminated or rescinded or otherwise amended, waived, supplemented or modified in any mannerrespect and, and except to the respective commitments contained therein have not been terminatedextent permitted by Section 6.8, reducedno such amendment, withdrawn supplement or rescinded in any respect modification is contemplated by Parent Buyer or Buyer Sub or, to the knowledge of ParentBuyer, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(e) As of the date hereof, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on the Closing Date.
(f) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Commitment Letters by Parent or, to the knowledge of Parent, any other party parties thereto.
(g) There are no side letters, understandings or other agreements or arrangements relating to the . The Financing to which Parent or any of its Affiliates is a partyCommitments, in addition the form delivered to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Letters to be paid on or prior to the date hereof.
(i) Assuming the Financing is funded in accordance with the conditions set forth in the Financing Commitment Letters and assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, as of the date hereof, Parent will have at and as of the Closing sufficient available funds to consummate the Merger and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger (such amounts, collectively, the “Merger Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder.
(j) Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement), assuming the representations and warranties in ARTICLE III (as qualified by the Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will be Solvent.Remainco and
Appears in 1 contract
Financing; Solvency. (a) Parent As of the date hereof, B▇▇▇▇ has delivered to the Company Remainco and M▇▇▇▇▇ Partner (i) a true, correct and complete and correct copy of the fully executed debt commitment letter, dated as of the date hereof, from the Debt Financing Sources party thereto, together with true, correct and complete copies of any related executed fee letters (each, a “Fee Letter”); provided that, solely with respect to any Fee Letter, the economic and financial terms, including fee amounts, “market flex” provisions, “securities demand” provisions, pricing terms, pricing caps and other commercially sensitive terms (none of which, individually or in the case of the fee lettersaggregate, redacted only for confidential provisions related to feesadversely affects availability, flex terms and other economic termstiming, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby below the amount required to pay the Required Amount) may be redacted in any respect)a customary manner from such true, dated as of the date hereof, by correct and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein complete copies (togethercollectively, including all exhibits, schedules and annexesannexes thereto, the “Debt Commitment Letter”), pursuant to which, upon the terms and subject only to the terms and conditions set forth thereinthereof, the Debt Financing Sources party thereto have agreed committed to lend the amounts aggregate amount of Debt Financing set forth therein to Buyer for the purpose of funding the Contemplated Transactions on the date on which the Closing should occur pursuant to Section 1.3 (together with any Alternative Financing pursuant to Section 6.8, the “Debt Financing”).
) and (bii) Parent has delivered to the Company a true, correct and complete and correct copy of the fully executed equity commitment letters, dated as of the date hereof, by and among The Veritas Capital Fund VI, L.P. (the “Equity Investor”) and Parent (the “Equity Commitment Letter” and, Letter (together with the Debt Commitment Letter, the “Commitment LettersFinancing Commitments”) from each of the Guarantors, pursuant to whichwhich the Guarantors have, upon on the terms and subject to the conditions set forth therein, the Equity Investor has agreed committed to invest in Parent Buyer the amount amounts set forth therein (the “Equity Financing”” and, and together with the Debt Financing, the “Financing”). The Equity Commitment Letter expressly provides that Remainco and Merger Partner are third party beneficiaries thereof as provided therein.
(b) Assuming the Company Financing is an express, intended third-party beneficiary of, and is entitled to enforcefunded in accordance with the Financing Commitments, the Equity Commitment Letteraggregate net proceeds from the Financing (after netting out applicable fees, expenses, original issue discount and similar premiums and charges and after giving effect of the maximum amount of “flex” (including any original issue discount flex) provided for under the Debt Financing) when funded in accordance with the Financing Commitments are sufficient to fund the Required Amount.
(c) As of the date hereof, the Commitment Letters Financing Commitments are in full force and effect and have not been withdrawn, terminated or rescinded or otherwise amended, supplemented or modified in any respect and, except to the extent permitted by Section 6.8, no such amendment, supplement or modification is contemplated by Buyer or Buyer Sub or, to the knowledge of Buyer, by the other parties thereto. The Financing Commitments, in the form delivered to Remainco and Merger Partner, constitute the legal, valid and binding obligation obligations of Parent Buyer and, to the knowledge of ParentBuyer, the other parties thereto, thereto and are enforceable against Parent and the other such parties thereto in accordance with their terms (respective terms, except, in each case, subject to the Enforceability Bankruptcy and Equity Exceptions). There are no side letters or other Contracts or written agreements to which Buyer is a party relating to the Financing Commitments that could (i) adversely affect the conditionality or enforceability of, or termination rights under, the Financing Commitments or the availability of the Financing or (ii) reduce the aggregate amount of the Financing below the Required Amount, other than as expressly contained in the Financing Commitments. As of the date hereof, there are no conditions precedent or subsequent related to the funding of the full amount of the Financing contemplated by the Commitment Letters, other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the “Financing Conditions”).
(d) As of the date hereof, the Commitment Letters have not been amended, waived, supplemented or modified in any manner, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge of ParentBuyer, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(e) As of the date hereof, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on the Closing Date.
(f) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred thatwhich, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Buyer or any other Buyer Party under any term, or a failure to satisfy a condition under the terms and conditions of any condition, of the Commitment Letters by Parent Financing Commitments or otherwise result in the amount of Financing necessary to fund the Required Amount being unavailable on the date on which the Closing should occur pursuant to Section 1.3. As of the date hereof and assuming the conditions set forth in Article IX have been satisfied, B▇▇▇▇ has no reason to believe that it or, to the knowledge of ParentBuyer, any other party thereto.
(g) There are no side letters, understandings or other agreements or arrangements relating to the Financing Commitments would be unable to which Parent satisfy on a timely basis any term or any condition of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the Financing contemplated Commitments required to be satisfied by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf it. Buyer has fully paid any and all commitment fees or other fees and amounts required by the Commitment Letters Financing Commitments to be paid on or prior to before the date hereof.
(i) Assuming . There are no conditions precedent related to the funding or investing, as applicable, of the full amount of the Financing is funded in accordance with the conditions necessary, other than as expressly set forth in the Financing Commitment Letters Commitments.
(d) Assuming (i) the accuracy of the representations and assuming warranties of Remainco and Spinco set forth in Article II (to the extent required by Article IX), (ii) the accuracy of the representations and warranties of Merger Partner set forth in Article III (to the extent required by Article IX), (iii) the satisfaction of the conditions to Buyer and Buyer Sub set forth in Article IX and (iv) that each of the conditions set forth in Sections 6.1 (x) Spinco and 6.3 is satisfied at Closing, as of the date hereof, Parent will have at and as of (y) Merger Partner are Solvent on the Closing sufficient available funds Date immediately prior to consummate giving effect to the Equity Sale and the Merger, immediately following the Equity Sale and the Merger and after giving effect to make all payments required to of the Contemplated Transactions, Buyer will be Solvent. No transfer of property is being made by ParentBuyer or Buyer Sub, Merger and no obligation is being incurred by Buyer or Buyer Sub or their respective Affiliates in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated herebyContemplated Transactions, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger (including all Indebtedness actual intent to hinder, delay or defraud either present or future creditors of Buyer, any member of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated Spinco Group or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses any member of the Merger (such amounts, collectively, the “Merger Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contraryPartner Group or, in no event shall the receipt or availability of each case, any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunderthereof.
(j) Immediately after giving effect to the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement), assuming the representations and warranties in ARTICLE III (as qualified by the Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will be Solvent.
Appears in 1 contract
Sources: Merger Agreement (International Game Technology PLC)
Financing; Solvency. (a) As of the date of this Agreement, Parent has delivered to the Company a true, complete and correct copy of the a fully executed debt equity commitment letter, dated the date of this Agreement (together with any related fee letters (in the case of the fee letters, redacted only for confidential provisions related to fees, flex terms and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), dated as of the date hereof, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein (together, including all exhibits, annexes, schedules and annexesterm sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.15, the “Debt Equity Commitment Letter”), from the Guarantors pursuant to whichwhich the Guarantors have agreed to make an equity investment in Parent, upon subject to the terms and subject only to the conditions set forth therein, in cash in the Debt Financing Sources party thereto have agreed to lend the amounts aggregate amount set forth therein (the “Debt Equity Financing”). The Equity Commitment Letter provides that the Company is an express third-party beneficiary of, and is entitled to require Parent to specifically enforce performance of the Guarantors’ obligation to fund the Equity Financing in accordance with and subject to the terms of, the Equity Commitment Letter.
(b) As of the date of this Agreement, Parent has delivered to the Company a true, complete and correct copy of the a fully executed equity debt commitment lettersletter and Redacted Fee Letter, each dated as of the date hereofof this Agreement from the Financing Sources identified therein (together with all exhibits, by annexes, schedules and among The Veritas Capital Fund VIterm sheets attached thereto and as amended, L.P. (modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.15, collectively, the “Equity Investor”) and Parent (the “Equity Debt Commitment Letter” and, together with the Debt Equity Commitment Letter, the “Commitment Financing Letters”) ), pursuant to whichwhich such Financing Sources have agreed to provide, upon subject to the terms and subject to the conditions set forth therein, debt financing in the Equity Investor has agreed to invest in Parent the amount amounts set forth therein (being collectively referred to as the “Equity Debt Financing”” and, and together with the Debt Equity Financing, collectively referred to as the “Financing”). The Equity Commitment Letter provides that the Company is an express, intended third-party beneficiary of, and is entitled to enforce, the Equity Commitment Letter.
(c) As of the date hereofof this Agreement, the Commitment Financing Letters are in full force and effect and constitute the valid valid, binding and binding enforceable obligation of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, enforceable against Parent and the other parties thereto in accordance with their terms (subject to the Enforceability Exceptions). As of the date hereof, there There are no conditions precedent or subsequent related to the funding of the full amount of the Financing contemplated by the Commitment Financing Letters, other than the conditions precedent set forth in the Commitment Financing Letters (such conditions precedent, the “Financing Conditions”).
(d) As of the date hereofof this Agreement, the Commitment Financing Letters have not been amended, waived, supplemented amended or modified in any mannermanner (other than to add additional parties thereto as permitted by Section 6.15), and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge Knowledge of Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge Knowledge of Parent, any other party thereto.
(e) As of the date hereofof this Agreement, assuming the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligation to consummate the Merger, Parent has no reason Knowledge of any facts or circumstances that are reasonably likely to believe that, assuming that each of the conditions set forth result in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be being satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Financing Letters will not be being made available to Parent on the Closing DateDate assuming the Financing Conditions are satisfied.
(f) As of the date of this Agreement, neither Parent nor Merger Sub is not in default or breach under the terms and conditions of either the Financing Letters and, assuming the satisfaction or waiver of the Commitment Letters conditions to Parent’s and Merger Sub’s obligation to consummate the Merger, no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach thereunder on the part of Parent or Merger Sub or a failure to satisfy a condition under Financing Condition therein by Parent or Merger Sub or to the terms and conditions Knowledge of Parent that would otherwise result in any portion of the Commitment Letters by Parent or, Financing necessary to fund the knowledge of Parent, any other party theretoRequired Amounts being unavailable on the date on which Closing occurs .
(g) There As of the date of this Agreement, other than the Redacted Fee Letter, there are no side letters, understandings or other agreements or arrangements relating to the Financing Letters or the Financing to which Parent or any of its Affiliates is a partyparty that could (A) affect the conditionality, in addition or availability of the Financing or reduce the aggregate principal amount of the Financing below the amount required to pay the Required Amounts at the Closing, (B) materially delay or prevent the Closing, (C) make the funding of the Debt Financing or the Equity Financing less likely to occur or (D) adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) As of the date of this Agreement, Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Financing Letters to be paid on or prior to the date hereofof this Agreement.
(i) Assuming (A) the Financing is funded in accordance with the conditions Financing Letters and (B) the accuracy in all material respects of the Company’s representations and warranties set forth in Article IV of this Agreement, the aggregate proceeds contemplated to be provided by the Financing Commitment Letters and assuming that each will be sufficient, together with available cash of the conditions set forth in Sections 6.1 and 6.3 is satisfied at ClosingCompany (giving due consideration to any material tax consequences related to repatriation), as of the date hereof, Parent will have at and as of the Closing sufficient available funds to consummate the Merger Transactions and to make all payments required to be made in connection therewith by ParentParent or Merger Sub, including (x) the payment of the Merger Sub or their respective Affiliates Consideration required to be paid on the Closing Date, (y) the repayment of all outstanding debt (and all premiums and fees payable in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt ) required by its terms to be repaid, redeemed, retired, cancelledcanceled, terminated or otherwise satisfied or discharged in connection with at the Merger Closing and (including all Indebtedness z) the payment of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid by Parent, Merger Sub, the Surviving Corporation or their Subsidiaries pursuant to or in connection with this Agreement and the Transactions, and associated costs and expenses of the Transactions required to be paid by Parent, Merger Sub, the Surviving Corporation or their Subsidiaries pursuant to this Agreement or the Financing Letter (such amounts, collectively, the “Merger Required Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in In no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Financing Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunderhereunder in accordance with the terms of this Agreement.
(j) Neither Parent nor Merger Sub is entering into this Agreement with the actual intent to hinder, delay or defraud either present or future creditors of the Company or any of its Subsidiaries. Immediately after giving effect to the transactions contemplated by this Agreement Transaction (including any financing in connection with the transactions contemplated by this AgreementTransactions), assuming (x) the accuracy of the Company’s representations and warranties set forth in ARTICLE III Article IV of this Agreement, (as qualified y) the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligation to consummate the Merger, and (z) the most recent financial statements included in a Quarterly Report on Form 10-Q or an Annual Report on Form 10-K filed by the Company Disclosure Schedule and with the Company SEC Disclosures) are true and correct present fairly in all material respects the consolidated financial condition of the Company and its consolidated Company Subsidiaries as at the end of the periods covered thereby and the consolidated results of operations of the Company and its consolidated Company Subsidiaries for the periods covered thereby in accordance with GAAP, Parent and its Subsidiaries, taken as a whole, will be Solvent.
Appears in 1 contract
Sources: Merger Agreement (Tech Data Corp)
Financing; Solvency. (a) Parent has delivered to the Company a true, complete and correct copy of the a fully executed debt equity commitment letter, letter dated the date of this Agreement (together with any related fee letters (in the case of the fee letters, redacted only for confidential provisions related to fees, flex terms and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), dated as of the date hereof, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein (together, including all exhibits, annexes, schedules and annexesterm sheets attached thereto and as amended, modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.15, the “Debt Commitment Equity Funding Letter”), ) from the Sponsor pursuant to whichwhich the Sponsor has agreed to make an equity investment in Parent, upon subject to the terms and subject only to the conditions set forth therein, in cash in the Debt Financing Sources party thereto have agreed to lend the amounts aggregate amount set forth therein (the “Debt Equity Financing”). The Equity Funding Letter provides that the Company is an express third-party beneficiary of, and is entitled to require Parent to specifically enforce performance of the Sponsor’s obligation to fund the Equity Financing in accordance with and subject to the terms of, the Equity Funding Letter.
(b) Parent has delivered to the Company a true, complete and correct copy of the a fully executed equity debt commitment letters, letter and Redacted Fee Letter dated as of the date hereofof this Agreement from the financial institutions identified therein (together with all exhibits, by annexes, schedules and among The Veritas Capital Fund VIterm sheets attached thereto and as amended, L.P. (modified, supplemented, replaced or extended from time to time after the date of this Agreement in compliance with Section 6.15, collectively, the “Equity Investor”) and Parent (the “Equity Debt Commitment Letter” and, together with the Debt Commitment Equity Funding Letter, the “Commitment Financing Letters”) ), pursuant to whichwhich such financial institutions have agreed to provide, upon subject to the terms and subject to the conditions set forth therein, debt financing in the Equity Investor has agreed to invest in Parent the amount amounts set forth therein (being collectively referred to as the “Equity Debt Financing”” and, and together with the Debt Equity Financing, collectively referred to as the “Financing”). The Equity Commitment Letter provides that the Company is an express, intended third-party beneficiary of, and is entitled to enforce, the Equity Commitment Letter.
(c) As of the date hereofof this Agreement, the Commitment Financing Letters are in full force and effect and constitute the valid valid, binding and binding enforceable obligation of Parent and, to the knowledge Knowledge of Parent, the other parties thereto, enforceable against Parent and the other parties thereto in accordance with their terms (subject to the Enforceability Exceptions). As of the date hereof, there There are no conditions precedent or subsequent other contingencies related to the funding of the full amount of the Financing contemplated by the Commitment Financing Letters, other than the conditions precedent set forth in the Commitment Financing Letters (such conditions precedent, the “Financing Conditions”).
(d) As of the date hereofof this Agreement, the Commitment Financing Letters have not been amended, waived, supplemented amended or modified in any manner, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge Knowledge of Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge Knowledge of Parent, any other party thereto.
(e) As of the date hereofof this Agreement, assuming the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligation to consummate the Merger, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Financing Letters will not be available to Parent on the Closing DateDate assuming the Financing Conditions are satisfied.
(f) As of the date of this Agreement, Parent is not in default or breach under the terms and conditions of either the Financing Letters and, assuming the satisfaction or waiver of the Commitment Letters conditions to Parent’s and Merger Sub’s obligation to consummate the Merger, no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach thereunder on the part of Parent or a failure to satisfy a condition under the terms and conditions of the Commitment Letters Financing Condition therein by Parent or, to the knowledge of Parent, any other party thereto.
(g) There As of the date of this Agreement, other than the Redacted Fee Letter, there are no side letters, understandings or other agreements or arrangements relating to the Financing Letters or the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, party that could adversely affect the conditionality, availability or amount of the Financing contemplated by the Commitment Financing Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment or other fees and amounts required by the Commitment Financing Letters to be paid on or prior to the date hereofof this Agreement.
(i) Assuming the Financing is The Financing, if and when funded in accordance with the conditions set forth in the Financing Commitment Letters Letters, will provide Parent and assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, as of the date hereof, Parent will have Merger Sub at and as of the Closing Date with sufficient available funds to consummate the Merger Transactions and to make all payments required to be made in connection therewith by ParentParent or Merger Sub, including (x) the payment of the Merger Sub or their respective Affiliates Consideration required to be paid on the Closing Date, (y) the repayment of all outstanding debt (and all premiums and fees payable in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt ) required by its terms to be repaid, redeemed, retired, cancelledcanceled, terminated or otherwise satisfied or discharged in connection with at the Merger Closing and (including all Indebtedness z) the payment of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid by Parent, Merger Sub, the Surviving Corporation or their Subsidiaries pursuant to or in connection with this Agreement and the Transactions, and associated costs and expenses of the Transactions required to be paid by Parent, Merger Sub, the Surviving Corporation or their Subsidiaries pursuant to this Agreement or the Financing Letter (such amounts, collectively, the “Merger Required Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Financing Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder.
(j) Neither Parent nor Merger Sub is entering into this Agreement with the actual intent to hinder, delay or defraud either present or future creditors of the Company or any of its Subsidiaries. Immediately after giving effect to the transactions contemplated by this Agreement Transaction (including any financing in connection with the transactions contemplated by this AgreementTransactions), assuming (x) the accuracy of the Company’s representations and warranties set forth in ARTICLE III Article IV of this Agreement, (as qualified y) the satisfaction or waiver of the conditions to Parent’s and Merger Sub’s obligation to consummate the Merger, and (z) the most recent financial forecasts of the Company made available to Parent by the Company Disclosure Schedule and or its Affiliates on or prior to the date hereof were prepared in good faith upon assumptions that were reasonable at such time (it being understood that the Company SEC Disclosuresis not making any representation and warranty with respect thereto as a result of such assumption in this sub-clause (z)), (i) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will not have incurred indebtedness beyond their ability to pay such indebtedness as it matures or becomes due, (ii) the then present fair saleable value of the assets of Parent and its Subsidiaries, taken as a whole, will exceed the amount that will be Solventrequired to pay their probable Liabilities (including the probable amount of all contingent Liabilities) and indebtedness as it becomes absolute or matured, (iii) the assets of Parent and its Subsidiaries, taken as a whole, at a fair valuation, will exceed their probable Liabilities (including the probable amount of all contingent Liabilities) and indebtedness and (iv) Parent and its Subsidiaries, taken as a whole, will not have unreasonably small capital to carry on their businesses as presently conducted or as proposed to be conducted.
Appears in 1 contract
Sources: Merger Agreement (Presidio, Inc.)
Financing; Solvency. (a) Parent has delivered to the Company a true, complete and correct copy of the fully executed debt commitment letter, together with any related fee letters (in the case of the fee letters, redacted only for confidential provisions related to fees, flex terms fee and other economic termsprovisions that are customarily redacted in connection with transactions of this type, none of which would be reasonably likely to adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respect), dated as of the date hereofof this Agreement, by and among Royal Bank of CanadaParent and the lenders party thereto (collectively, Deutsche Bank AG New York Branchthe “Lenders”), Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein (together, including all exhibits, schedules and annexes, the “Debt Commitment Letter”), . The debt financing committed pursuant to which, upon the terms and subject only to the conditions set forth therein, the Debt Financing Sources party thereto have agreed Commitment Letter is collectively referred to lend the amounts set forth therein (in this Agreement as the “Debt Financing.”).
(b) Parent has delivered to the Company a true, complete and correct copy of the fully executed equity commitment lettersletter, dated as of the date hereofof this Agreement, by and among The Veritas Capital Fund VIeach of the parties thereto (each, L.P. (the an “Equity Investor”) and Parent (the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which, upon the terms and subject to the conditions set forth therein, the each Equity Investor has agreed to invest in Parent the amount set forth therein (the “Equity Financing”, and together with the Debt Financing, the “Financing”). The Equity Commitment Letter provides that Financing and the Company is an express, intended third-party beneficiary of, and is entitled Debt Financing are collectively referred to enforce, as the Equity Commitment Letter“Financing.”
(c) As of the date hereofof this Agreement, the Commitment Letters are in full force and effect and constitute the valid legal, valid, binding and binding enforceable obligation of Parent and, to the knowledge of Parent, of all the other parties thereto, enforceable against Parent and the other parties thereto in accordance with their terms (its terms, subject to the Enforceability Exceptions). As of Except as expressly set forth in the date hereofCommitment Letters, there are no conditions precedent or subsequent related to the funding obligations of the full Lenders and the Equity Investors to provide the Financing or any contingencies that would permit the Lenders or the Equity Investors to reduce the total amount of the Financing, including any condition or other contingency relating to the amount or availability of the Debt Financing contemplated by the Commitment Letters, other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the pursuant to any “Financing Conditions”)flex” provision.
(d) As None of the date hereof, the Commitment Letters have not been amended, waived, supplemented modified or modified altered in any mannermanner at any time through the Closing, except as permitted by Section 5.11(b), and none of the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge of Parent, any other party theretorespect, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(e) As of the date hereofof this Agreement and assuming satisfaction or waiver (to the extent permitted by applicable Law) of the conditions to Parent’s or Merger Sub’s obligations to consummate the Mergers, (i) Parent has no reason to believe that, assuming that each of the any conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of to the Financing Conditions will not be satisfied by Parent on a timely basis on or prior to the Closing Date or (ii) the Financing contemplated by any knowledge that any Lenders or Equity Investors will not, or is expected not to, perform its obligations under the Commitment Letters will not be available to Parent on the Closing DateLetters.
(f) As of the date of this Agreement, Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and and, to the knowledge of Parent, no event has occurred that, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach or a failure to satisfy a condition under the terms and conditions of the Commitment Letters by Parent or, to the knowledge of Parent, any other party theretoLetters.
(g) There As of the date of this Agreement, there are no side letters, understandings or other agreements agreements, contracts or arrangements of any kind relating to the Commitment Letters or the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the availability, enforceability, conditionality or amount of the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment fees or other fees and amounts required by to be paid pursuant to the terms of the Commitment Letters to be paid on or prior to the date hereofof this Agreement, and will pay in full any such amounts due on or before the Closing Date.
(i) Assuming the Financing is The Financing, when funded in accordance with the conditions set forth Commitment Letters, will, together with the proceeds from the JV Sale Transaction and available cash on the Closing Date of the Company and its Subsidiaries, in the Financing Commitment Letters aggregate provide Parent and assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, as of the date hereof, Parent will have at and as of Merger Sub with cash proceeds on the Closing Date sufficient available funds to consummate for the satisfaction of all of Parent’s and Merger Sub’s payment obligations under this Agreement and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates in connection therewithunder the Commitment Letters, including the payment of the aggregate Merger Consideration, Company OP Common Unit Payment Amount and Company OP Series A Preferred Unit Payment Amount, any payments made in respect of equity or other incentive compensation obligations to be paid in connection with the transactions contemplated hereby, the payment of any debt required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger Mergers (including all Indebtedness of the Company and its Subsidiaries contemplated or required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger Mergers and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts required to be paid by Parent and Merger Sub pursuant to this Agreement and associated related costs and expenses of the Merger Mergers (such amounts, collectively, the “Merger Amounts”). As of the date hereofof this Agreement, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent Parent, Merger Sub or any of its their respective Affiliates or any other financing transaction or other transactions be a condition to any of the obligations of Parent or Merger Sub hereunder.
(j) Immediately after giving effect Assuming that (a) the conditions to the transactions contemplated by this Agreement obligation of Parent and Merger Sub to consummate the Mergers have been satisfied or waived, (including any financing in connection with the transactions contemplated by this Agreement), assuming b) the representations and warranties set forth in ARTICLE Article III (as qualified by the Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects respects, and (c) the financial projections or forecasts provided by the Company to Parent prior to the date hereof have been prepared in good faith on assumptions that were and its Subsidiariescontinue to be reasonable, taken as a wholethen at and immediately following the Effective Time and after giving effect to the Mergers and the other transactions contemplated by this Agreement, including the funding of the Financing, the Surviving Company and Surviving Company OP will be Solvent. Parent and Merger Sub are not entering into the transactions contemplated by this Agreement with the intent to hinder, delay or defraud either present or future creditors.
(k) Notwithstanding anything to the contrary contained herein, each of the parties hereto agrees that a breach of the representation and warranty set forth in this Section 4.6, other than Section 4.6(j), on the Closing Date shall not result in the failure of a condition precedent to the Company’s obligations under this Agreement, if (notwithstanding such breach) Parent is willing and able to consummate the Mergers (including paying all Merger Amounts) on the Closing Date.
Appears in 1 contract
Financing; Solvency. (a) Parent Buyer has delivered to Seller true and complete copies of (i) the Company a trueexecuted commitment letter, complete and correct copy dated as of the fully date hereof (the “Equity Commitment Letter”), between Buyer and the Guarantors (the “Equity Financing Sources”), pursuant to which the Equity Financing Sources have committed, subject only to the terms thereof, to invest the amounts set forth therein on the date on which the Closing should occur pursuant to Section 3.01 and to which Seller is an express third party beneficiary (the “Equity Financing”), and (ii) the executed debt commitment letter, letters (together with the term sheet and any related fee letters (in the case of the fee lettersother annexes, redacted only for confidential provisions related to feesexhibits, flex terms schedules and other economic terms, none of which adversely affect the conditionality, enforceability, availability, termination or aggregate principal amount of the Debt Financing contemplated thereby in any respectattachments thereto), dated as of the date hereof, by and among Royal Bank of Canada, Deutsche Bank AG New York Branch, Deutsche Bank Securities, Inc., Chain Bridge Opportunistic Funding, LLC and Parent providing for debt financing as described therein hereof (together, including all exhibits, schedules and annexes, the “Debt Commitment Letters” and, together with the Equity Commitment Letter, the “Financing Commitments”), pursuant to which, upon the terms and subject only to the conditions set forth therein, ) from the Debt Financing Sources party thereto (together with the Equity Financing Source, the “Financing Sources”) pursuant to which such Debt Financing Sources have agreed committed, subject only to the terms thereof, to lend or invest the amounts set forth therein for purposes of funding the transactions contemplated by this Agreement on the date on which the Closing should occur pursuant to Section 3.01 (the “Debt Financing”).
(b) Parent has delivered to the Company a true, complete and correct copy of the fully executed equity commitment letters, dated as of the date hereof, by and among The Veritas Capital Fund VI, L.P. (the “Equity Investor”) and Parent (the “Equity Commitment Letter” and, together with the Debt Commitment Letter, the “Commitment Letters”) pursuant to which, upon the terms and subject to the conditions set forth therein, the Equity Investor has agreed to invest in Parent the amount set forth therein (the “Equity Financing”, and together with the Debt Financing, the “Financing”). The Equity Buyer has also delivered to Seller true and complete copies of the fee letter (with only the fee amounts, economic terms and “market flex” provisions contained therein (none of which individually or in the aggregate would reduce the amount of the Debt Financing or adversely affect the availability of the Debt Financing or delay or prevent the Closing or make the funding of the Debt Financing less likely to occur) redacted) relating to the Debt Commitment Letter provides that Letters (such fee letter, the “Fee Letter”).
(b) Assuming (i) the Financing is funded in accordance with the Financing Commitments, (ii) the accuracy of the representations and warranties of Seller contained in this Agreement, (iii) the performance by Seller, its Subsidiaries and their respective Affiliates of its and their respective obligations under this Agreement, including, but not limited to, the obligations set forth in Section 8.09, and (iv) the satisfaction of all of the conditions to the obligations of Buyer to consummate the transactions contemplated by this Agreement, the aggregate net proceeds from the Financing when funded in accordance with the Financing Commitments are sufficient to fund all of the amounts required to be provided by Buyer on the Closing Date for the consummation of the transactions contemplated hereby and are sufficient for the satisfaction when due of all of the obligations of Buyer under this Agreement on such date, including the payment of all costs and expenses of the transactions contemplated hereby (including any obligations of the Business) which become due or payable by the any Acquired Company is an expressin connection with, intended third-party beneficiary or as a result of, the Closing and is entitled to enforceany repayment or refinancing of Indebtedness required in connection therewith or contemplated by any of the Financing Commitments (collectively, the Equity Commitment Letter“Financing Uses”).
(c) As of the date hereof, all of the Commitment Letters Financing Commitments are in full force and effect and constitute have not been withdrawn, terminated or rescinded or otherwise amended, supplemented or modified (or contemplated to be amended, supplemented or modified) in any respect. Each of the Financing Commitments, in the form delivered to Seller, is as of the date hereof (i) a legal, valid and binding obligation of Parent Buyer (or, if applicable, its Affiliate party thereto) and, to the knowledge Knowledge of ParentBuyer, the other parties thereto, and (ii) enforceable against Parent and Buyer (or, if applicable, its Affiliate party thereto) and, to the Knowledge of Buyer, such other parties thereto in accordance with their its terms (in each case, subject to the Enforceability Exceptionsapplicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). As of the date hereof, there are no conditions precedent side letters or subsequent related other Contracts or arrangements (except for the Fee Letter with respect to the funding Debt Financing and any other agreements, each of which has been delivered to Seller in accordance with the full amount provisions of Section 6.06(a)) relating to the Financing contemplated by the Commitment Letters, other than the conditions precedent set forth in the Commitment Letters (such conditions precedent, the “Financing Conditions”).
(d) Commitments. As of the date hereof, the Commitment Letters have not been amended, waived, supplemented or modified in any manner, and the respective commitments contained therein have not been terminated, reduced, withdrawn or rescinded in any respect by Parent or, to the knowledge of Parent, any other party thereto, and no such termination, reduction, withdrawal or rescission is contemplated by Parent or, to the knowledge of Parent, any other party thereto.
(e) As of the date hereof, Parent has no reason to believe that, assuming that each of the conditions set forth in Sections 6.1 and 6.3 is satisfied at Closing, (i) any of the Financing Conditions will not be satisfied on or prior to the Closing Date or (ii) the Financing contemplated by the Commitment Letters will not be available to Parent on the Closing Date.
(f) Parent is not in default or breach under the terms and conditions of either of the Commitment Letters and no event has occurred thatwhich, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a default or breach on the part of Buyer (or, if applicable, its Affiliate party thereto) under any term, or a failure of any condition required to be satisfied on or prior to the date hereof, of the Financing Commitments or that would be reasonably likely to result in any portion of the Financing necessary to consummate the Closing contemplated thereby being unavailable on the date on which the Closing should occur pursuant to Section 3.01. Assuming the satisfaction of the conditions in Section 11.02, as of the date hereof, Buyer has no reason to believe that it, any Equity Financing Source or any Debt Financing Source would be unable to satisfy on a timely basis any term or condition under the terms and conditions of the Commitment Letters Financing Commitments required to be satisfied by Parent or, to the knowledge of Parent, any other party thereto.
it. Buyer (gor its applicable Affiliate) There are no side letters, understandings or other agreements or arrangements relating to the Financing to which Parent or any of its Affiliates is a party, in addition to the Commitment Letters, that could adversely affect the Financing contemplated by the Commitment Letters in any respect, other than those set forth in the Commitment Letters.
(h) Parent or an Affiliate thereof on its behalf has fully paid any and all commitment fees or other fees and amounts required by the Commitment Letters Financing Commitments to be paid on or prior before the date of this Agreement. There are no conditions precedent or other contingencies related to the date hereof.
(i) Assuming funding or investing, as applicable, of the Financing is funded in accordance with full amount of the conditions Financing, other than as expressly set forth in the Financing Commitment Letters and assuming that each Commitments.
(d) Concurrently with the execution of this Agreement, Buyer has caused the conditions set forth in Sections 6.1 and 6.3 is satisfied at ClosingGuarantors to deliver the Guaranty, dated as of the date hereof, Parent will have at to Seller. The Guaranty is in full force and as effect and has not been withdrawn or terminated or otherwise amended, supplemented or modified in any respect. The Guaranty is a legal and valid and binding obligation of the Guarantors, enforceable against the Guarantors in accordance with its terms. No event has occurred which, with or without notice, lapse of time or both, could constitute a default or breach on the part of the Guarantors under such Guaranty.
(e) Assuming the accuracy of the representations and warranties of Seller in this Agreement, the Transaction Agreements and any certificate delivered hereunder and thereunder, the satisfaction of the Buyer’s conditions precedent to Closing sufficient available funds to consummate under this Agreement, the Merger fulfillment of Seller and to make all payments required to be made by Parent, Merger Sub or their respective Affiliates of their respective obligations under the Agreement, that the most recent financial forecasts for the Business made available to Buyer by Seller prior to the date hereof have been prepared in connection therewith, including payment of the aggregate Merger Consideration, any payments made in respect of equity compensation obligations good faith upon assumptions that were and continue to be paid in connection with the transactions contemplated hereby, the payment of any debt required reasonable and that immediately prior to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger Closing (including all Indebtedness of the Company and its Subsidiaries required to be repaid, redeemed, retired, cancelled, terminated or otherwise satisfied or discharged in connection with the Merger and the other transactions contemplated hereby) and all premiums and fees required to be paid in connection therewith and all other amounts to be paid pursuant to this Agreement and associated costs and expenses of the Merger (such amounts, collectively, the “Merger Amounts”). As of the date hereof, Parent has no reason to believe that the representations contained in the immediately preceding sentence will not be true at and as of the Closing Date. Notwithstanding anything in this Agreement without giving effect to the contrary, in no event shall the receipt or availability of any funds or financing (including the Financing contemplated by the Commitment Letters) by or to Parent or any of its Affiliates or any other financing transaction be a condition to any of the obligations of Parent or Merger Sub hereunder.
(j) Immediately but after giving effect to the Reorganization) the Business and the Acquired Companies are Solvent, then, at and immediately following the Closing and after giving effect to all of the transactions contemplated by this Agreement, including the funding of the Financing and the Financing Uses, Buyer and its Subsidiaries (including each Acquired Company), taken as a whole on a consolidated basis, will be Solvent. Buyer is not entering into the transactions contemplated by this Agreement (including any financing in connection with the transactions contemplated by this Agreement)intent to hinder, assuming delay or defraud either present or future creditors of Buyer, the representations and warranties in ARTICLE III (as qualified by the Business, any Acquired Company Disclosure Schedule and the Company SEC Disclosures) are true and correct in all material respects and Parent and its Subsidiaries, taken as a whole, will be Solventor any Affiliates thereof.
Appears in 1 contract
Sources: Equity Purchase Agreement (Navigant Consulting Inc)